Filed 4/30/13

CERTIFIED FOR PARTIAL PUBLICATION *

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. KOUA XIONG, Defendant and Appellant. F062474 (Super. Ct. No. F09905463)



### OPINION

APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt, Judge. Scott Concklin, under appointment by th e Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant A ttorney General, Catherine Chatman and Daniel B. Bernstein, Depu ty Attorneys Gene ral, for Plaintiff and Respondent.
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* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, only the Procedural Summary, Facts, parts I., I.A. and I.B. of the Discussion, and the Disposition are certified for publication.2. Defendant Koua Xiong was co nvicted of the first degree murder of a taxi driver, José Jesus Martinez, who was found dead in hi s taxi, which had crashed into a tree. He had been killed with a single, point-blank gunshot to the back of the head. No suspect came to light until defendant was identif ied by a “cold hit”—a match of DNA 1 profiles found through the comparison of the DNA prof ile from the blood found in and on the taxi with an offender database of DNA profiles. On appeal, defendant contends (1) the
evidence was insuffi cient to support the co nvictions, (2) defense counsel was ineffective for failing to object to the DNA evidence and request a lim iting instruction, and (3) the trial court erred in failing to stay the se ntence on possession of a firearm pursuant to
Penal Code section 654. 2 We will affirm.
PROCEDURAL SUMMARY On March 10, 2011, the Fres no County District Attorn ey charged defendant with murder (§ 187, subd. (a); count 1) a nd possession of a firearm by a felon (former § 12021, subd. (a)(1); coun t 2). As to count 1, the inform ation also alleged that defendant personally and intenti onally discharged a firearm (form er § 12022.53, subd. (c)), which proximately caused José’s death (former § 12 022.53, subd. (d)), and it alleged the special
circumstances that the murder occurred du ring the commission of a robbery (§ 190.2, subd. (a)(17)(A)) and that the victim wa s operating a taxicab when he was killed (§ 190.25). A jury found defendan t guilty of first degree murder on count 1, found true all of the allegations, and found defe ndant guilty on count 2. The trial court sentenced him to life in prison without the possi bility of parole on count 1, plus a consecutive 25-year-tolife term on the firearm enhancement under form er section 12022.53, subdivision (d), and a stayed 20-year term on the firearm enha ncement under former section 12022.53,

1 Deoxyribonucleic acid.
2 All statutory references are to the Penal Code unless otherwise noted.3. subdivision (c). On count 2, the court sent enced defendant to the upper term of three years, to be served concurrently with the sentence on count 1.
FACTS Very early in the morning of March 10, 2009, three taxi s were lined up outside the bus station in Fresno, waiting for potential cust omers. A bus was expected to arrive at 1:45 a.m. Enrique was the driver of the firs t taxi, and José was the driver of the third taxi, a 1999 Ford Crown Victoria. At about 1:00 a.m., Enrique saw José go into the bus
station to use the restroom. When José came back out of the station, they greeted each other, and José went back to his taxi. After José got into his taxi, Enrique noticed in his
side mirrors that a man walked up to José’s taxi and spoke to him. Enrique could not see the man’s face. Enrique watche d with interest because he was first in the taxi line and should have gotten the next customer. Enrique saw the man get into José’s taxi. José pulled away, made a U-turn, and drove north. It was between 1:15 and 1:20 a.m. At about 1:30 a.m., a woman and her father were driving east on Kearney Boulevard when they saw a taxi on the side of the road. The taxi was on the north side of Kearney Boulevard, west of Hughes Avenue . The taxi was pointed in the wrong direction. It was very dark, and the woman was not sure if the taxi had hit a tree or if it was just parked, but it was in a strange position to be parked. Her fa ther turned the car around to shine the high beam lights on the ta xi. The woman told her father, “I think
someone’s in the car. I think it hit the tree. ” She immediately called 911. The person in the driver’s seat did not react to the high beam s. The woman noticed that the taxi’s doors were all closed except for the rear door on the driver’s si de, which was slightly open. She did not see anyone around or walking away from the taxi . She was afraid because she thought someone had gotten out of the back seat of the taxi. Officers responded to the scene immediately. The fro nt end of the taxi had collided with a very large palm tree and was badly damaged. Tire tracks showed the taxi
had veered off the road before hitting the tree. The ig nition key was on and the taxi was4. in drive, but the engine was not running. The headlights were still turned on, but they were no longer working. The rear tail lights were still illuminated. The left rear door was wide open and the long center lap belt wa s hanging out of the door. The right side of the taxi was up against a very large oleander bus h. The right rear door was ajar and the
front doors were closed. José was sitting in the driver’s seat. He was not wearing a seatbelt. An officer was able to open the driver’s door, but two of ficers had to pull it fu lly open due to the damaged front quarter panel. Jo sé did not have a pulse. (At this point, officers did not realize he had been shot.) His light-colored jacket was almost completely unzipped and pulled open. Blood was smeared all over it. His right arm still rested on the armrest, which was also smeared with blood. Oddly, a watch with a flexible metal band was balanced on top of his forear m. The front airbags had depl oyed (and deflated) and were smeared with blood. The front passenger seatwas pushed forward, particularly on the left side, and twisted in a clockwise manner toward the window. A large quantity of blood was on the ri ght side of the back seat, and it was smeared on the inside of the right rear door. Outside the right rear door, the area over the
door was smeared with blood and free of the dus t that covered the rest of the taxi. There were numerous blood smears starting near the right rear door hand le and continuing on the right sail panel and rear quarter panel to ward the rear of the taxi. Blood smears zigzagged across the top of the trunk. The left rear door wa s smeared with blood, and the door window had blood drippings 10 inches lo ng. The center post between the left front and rear doors also bore the blood drippings, and the top of the taxi , directly above both doors on the left side, was smeared with blood . The roof edge of the taxi had two dents in the region between the doors on the left si de. Near the dents, the paint was freshly chipped and the bare metal exposed. The insi de of the left rear door was smeared with
blood. The handle of the driver’s door was also smeared with blood.5. After the driver’s door was opened, he avy blood drippings we re apparent on the door sill plate. Business cards and papers of the type normally found in a wallet were
strewn on the floorboard and on the dirt outside the driver’s door. Numerous blood droplets were on the cards and papers. A plastic photograph holder of the type normally found inside a wallet, contained photographs a nd was on the edge of the driver’s seat. A driving log and other papers were on the front passenger seat. No wallet was found, although it was José’s custom and habit to carry one. One shoeprint was found near the right rear of the taxi, next to the oleander, but no others were found. A piece of Mexican mo ney was entangled in the oleander bush, and the bush was bloody. Near the left rear of th e taxi, officers found several drops of blood in the dirt. Two officers and a police dog se arched the surrounding area within a radius of about 300 yards, but found no one. An accident investigator estimated that the taxi was traveling about 33 miles per
hour when it collided w ith the palm tree. The taxi wa s rolling, not braking, and José necessarily had his foot on the accelerator. After the collisi on, the rear wheels continued to spin in the dirt and probably produced a lot of dust. The dents in the left side of the taxi’s roof edge line were induced damage fro m the sudden change in velocity during the collision. This buckling or caving generally causes paint chips to fly off. A person climbing over the roof of the car would not t ypically cause damage to the roof edge line, but would more likely dent the middle of the roof. The investigator did not believe the taxi’s roof damage was caused by a person. The bent front passenger seat demonstrated that one unrestrained occupant in the
back seat struck the back of the front seat upon the sudden deceleration from 33 to zero miles per hour when the taxi struck the tree. The occupant contin ued moving until he or she was stopped by the front seat. The seat be lts in the back seat showed no signs of having been worn during a collision. The driver’s seat belt showed no major stretching,6. but it was an older, worn belt. And a seat belt might incur less stretching when an air bag is deployed. After the collision, the driver’s door wa s no longer sealable. The taxi’s doors
would not have flown open during the collision; someone had to have opened them. At about 3:30 a.m., Detective Yee, the primary detective assigned to the case,
arrived at the crime scene. He observed the blood inside the taxi, particularly on the back right seat, outside on the right rear of the taxi, and on the oleander bush right outside the right rear door. He also saw a drop of blo od in the dirt, but he could find no blood trail leading away from the scene, and he found only one footprint. He looked again after the taxi was lifted from the site, but he still found no other tracks or drops of blood. Detective Yee described the watch resting on José’s arm as a “cheap watch.” No fingerprints were found on th e watch or anything else. Detective Yee went to the hospital to observe José’s body and to examine his belongings. José’s light-colored jacket was sm eared with a lot of blood. He had a cell phone, but no wallet. The blo od on the jacket was concentrat ed on the left side of the jacket and around the pockets. On March 10, 2009, the forensic path ologist performed the autopsy on José’s body. The pathologist observed a single guns hot wound to the center of the back of José’s head. The muzzle of the gun had been pr essed to his head when it was fired. José was instantly incapacitated, his brain ceased functioning within se conds, and he died shortly thereafter. The pathologis t estimated the bullet’s caliber as about .22, .25, or .32. He did not think it was as large as .38 calibe r. José bore a diagonal bruise across his body from the seat belt. His liver suffered a small superficial tear. José did not suffer injuries from the airbag. The pathologist de termined that the gunshot was the cause of the death, and the manner of death was homici de. José’s blood tested negative for drugs
and alcohol.7. Fingerprints lifted from the taxi belonged to José’s r oommate, who was eliminated as a suspect. No gun and no prints belonging to defend ant were found inside the taxi. Twenty $1 bills were found inside the owner’s manual on the floor. On March 11, 2009, the taxi was brough t to the Department of Justice (DOJ)
crime lab in Fresno. Detectiv e Yee spoke to the DNA analyst and left the taxi for her to analyze. The analyst photographed the taxi thoroughly. Sh e noted the blood on various
surfaces on the inside and outsideof the taxi. She observed that José’s jacket had blood on the inside and outside of both pockets an d around the hood and back of the jacket. The analyst took many blood samples from all of these stains, then analyzed the DNA in 16 of the samples, plus the blood drop that had been collectedfrom the dirt at the scene. For each sample, she created a profile of 15 genetic loci, pl us one gender marker. The DNA from the blood spatter on the inside of the taxi’s windshield matched the DNA
from José’s blood. The rest of the blood samples all came from the same unknown male, for which the analyst now had a 15-locus DNA profile. 3 The analyst calculated the rarity of th e unknown male’s DNA profile in three populations using the allele frequencies from African-American, Caucasian, and Hispanic population databases. The allele frequencies sh e used were determined by an FBI study. The analyst explained that the frequencies from the three ethnic populations provided an example of approximately how rare the profile was “across the board.” She did not use other ethnic databases, such as Asian or Indian databases. Using the three major populations was the DOJ’s standard proced ure for statistical an alysis throughout California. She explained that the unknown male’s DNA profile was “extremely rare.” She determined that “[t]he sta tistical chance that [she] would pick an unrelated individual

3 The blood on the exterior of José’s left pocket was a mixture, the major portion of which was from the same unkno wn male. The minor portion contained only four minor alleles, which the analyst did not interpret. Those alleles could have come from a DNA source other than blood.8. at random that would have the same profile” was approximately “one in two septillion [2 followed by 24 zeros] Africa n-Americans, [one] in 270 sextillion [270 followed by 21 zeros] Caucasians, and [one] in 56 se xtillion [56 followed by 21 zeros] Hispanics.” Because the police currently had no suspec t in the crime, the analyst entered the unknown male’s DNA profile into the Co mbined DNA Index System (CODIS; an
offender database 4 ) on May 22, 2009, to see if she c ould get a match or “hit.” This allowed her to compare the unknown male’s DNA profile to a database of the DNA profiles entered not only in California but al so in the entire country. Initially, no match

4 “CODIS is the acronym for the ‘Combine d DNA Index System’ and is the generic term used to describe the FBI’s program of support for criminal ju stice DNA databases as well as the software used to run these databases. The National DNA Index System or NDIS is considered one part of CODIS, th e national level, containing the DNA profiles contributed by federal, state, and loca l participating forensic laboratories.” (http://www.fbi.gov/about-us/lab/ biometric-analysis/codis, under CODIS and NDIS Fact Sheet, as of April 30, 2013.) “The DNA Iden tification Act of 1994 (42 U.S.C. §14132) authorized the establishment of [the NDIS] . The DNA Act specifies the categories of data that may be maintained in NDIS (convi cted offenders, arrestees, legal, detainees, forensic (casework), unidentified human re mains, missing persons and relatives of missing persons) as well as requirements for participating laboratories relating to quality assurance, privacy an d expungement.” ( Ibid. ) “CODIS was established by Congress to assist in providing investiga tive leads for law enforcement in cases where no suspect has yet been identified, therefore a CODIS h it provides new investigative information on these cases.” ( Ibid. ) “CODIS was designed to compar e a target DNA record against the DNA records contained in the database. Once a match is identified by the CODIS software, the laboratories involved in the matc h exchange information to verify the match and establish coordination betw een their two agencies. Th e match of the forensic DNA record against the DNA record in the database may be used to establish probable cause to obtain an evidentiary DNA samp le from the suspect. The law enforcement agency can use this documentation to obtain a court or der authorizing the co llection of a known biological reference sample from the offend er. The casework laboratory can then perform a DNA analysis on the known biological sample so that this analysis can be presented as evidence in court.” ( Ibid. ) In 2008, CODIS c ontained over 6.7 million offender, arrestee, and forens ic profiles; in 2010, it c ontained over 9.5 million. (http://www.fbi.gov/about-us/lab/bi ometric-analysis/codis/codis _brochure, as of April 30, 2013.)9. was found. But the CODIS system rechec ked for matches on a regular basis, and on September 10, 2009, it found a match. The Richmond DOJ lab retested its sample to verify the profile, then notified the analyst of defendant’s name. On September 14, 2009, th e analyst called Detective Yee and told him defendant had been found as a match to the DNA pr ofile. Detective Yee located defendant’s address on Hughes Avenue, about a mile fro m the crime scene. Officers went to defendant’s house, took him in to custody, and brought him to the station for questioning. The officers placed defendant in an interview room abou t eight feet square. The
room locked from the inside and the only way out was with a department-issued key.
Detective Yee read defendant his Miranda 5 rights and defendant agreed to speak to
Detectives Yee and Villalvazo. The interview was recorded by a hidden camera and the video was played for the jury at trial. In the interview, defendant explained that he sustained an injury to his head about six months earlier when some Mexicans hit him with a two-by-four in an alley. The wound bled and he still had a scar on the front of his face over his right eyebrow and up to his hairline. After th ey talked a while, Detective Yee showed defendant some photographs of the taxi crashed against the palm tree. At that point, defendant started to yawn and co ntinued to yawn about 40 times, even though he had not yawned before. Defendant deniedtaking any property from José or being
involved with his mu rder. After the detectives leftthe room, defendant got up and
checked the door to see if it was locked. Detectiv e Villalvazo and anot her detective, who were watching the video feed, saw defendant ju mp up onto the table, reach up to a ceiling tile, and push the tile up. Above the ceiling wa s a crawl space leading to other rooms. Detective Villalvazo thought defendant was trying to escape, so he and the other detective immediately ran into the room. As they entered, defendant was already dropping down and he sat in the chair. He said, “I was looking for a camera or

5 Miranda v. Arizona (1966) 384 U.S. 436.10. something.” A ceiling tile remained out of pl ace. The detectives handcuffed defendant and escorted him to a holding cell for transport to the jail.
A technician collected DNA from the insi de of defendant’s mouth with two buccal
swabs. Detective Yee deliver ed the swabs to the DOJ lab so the analyst could compare defendant’s DNA profile to thatof the unknown male. The analyst explained that this additional testing of a suspect’s DNA was re quired procedure after a cold hit. The analyst created defendant’s DNA profile from the cells on the buccal swab, and determined that his profile matched that of the unknown male. At trial, the analyst testified that in her expert opinion, defendant was the same person as the unknown male
who left the blood in the taxi.
DISCUSSION I. Sufficiency of the Evidence
Defendant contends that for various re asons the evidence was insufficient to support his convictions. We rej ect each of his contentions. The test of sufficiency of the evidence is whether, re viewing the whole record in the light most favorable to the judgment belo w, substantial evidence is disclosed such
that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt. ( People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial evid ence is evidence that is “reasonable, credible, and of solid value.” ( People v. Johnson, supra, at p. 578.) “[M]ere speculation cannot support a conviction. [Citations.]” ( People v. Marshall (1997) 15 Cal.4th 1, 35.) An appellate court must “presu me in support of the judgment the existence of every fact the trier could reasonably de duce from the evidence.” ( People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence ( People v. Culver (1973) 10 Cal.3d 542, 548), reappraise th e credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact ( In re Frederick G. (1979) 96 Cal.App.3d 353, 367). Furthermore, an appellat e court can only reject evidence accepted11. by the trier of fact when the evidence is inherently improbable and impossible of belief. ( People v. Maxwell (1979) 94 Cal.App.3d 562, 577.) Ou r sole function is to determine if

any rational trier of fact could have found th e essential elements of the crime beyond a reasonable doubt. ( Jackson v. Virginia, supra , 443 U.S. at p. 319; People v. Marshall,

supra, at p. 34.) These principles are applicab le regardless of whether the prosecution relies primarily on direct or circumstantial evidence. ( People v. Lenart (2004) 32 Cal.4th 1107, 1125.) Viewing the evidence presen ted in this case in ac cord with th e foregoing principles, we find it to be “reasonable, cred ible, and of solid va lue”—hence, “legally sufficient” ( People v. Marshall, supra, 15 Cal.4th at p. 35)—and accordingly conclude it is sufficient to uphold defendant’s convictions.
A. Science Generally, a person becomes a suspect in a crime for re asons other than his DNA profile. When his DNA is later tested a nd found to match the DNA left behind by the perpetrator at the crime s cene, the evidence against the suspect is enormously strengthened. By contrast, in cold hit case s (also called database search or database “trawl” cases), a person becomes a suspec t only because his DNA profile matches the perpetrator’s. “A genetic profile is much like a physic al profile or composite sketch—it is a compilation of traits to describe the perpetrator. [T]he more traits described, the more specific the sketch of the perpetrator a nd the more limited the pool of possible perpetrators.” ( People v. Pizarro (2003) 110 Cal.App.4th 530, 562 ( Pizarro II ), disapproved on other grounds in People v. Wilson (2006) 38 Cal.4th 1237, 1250-1251 ( Wilson ).) A match between a suspect’s traits and the perpetrator’s traits directly incriminates the suspect by demonstrating that he resembles the perpetrator and therefore12. could be the perpetrator. 6 But the match alone does not establish the weight of the evidence. Anyone with the same profile could be the perpetrator, and if a large number of people share the profile, the match does not carry much evidentiary weight. Thus, the match requires a second piece of evidence—the statistical frequency of the profile. “The statistical evidence gives the matc h evidence its weight. It is an expression of the rarity of the perpetrator’s profile, the size of the pool of possible perpetrators, and the
likelihood of a random match with the perpetrator’s profile.” ( Pizarro II, supra, at pp. 542, 576.) “The determina tion of what is often called the ‘significance of the match’
is a statistical assessment of how incriminating it is that the defendant’s profile matches the perpetrator’s.” ( Id. at p. 576.) The rarer the profile in the population, the more likely
the defendant is in f act the perpetrator. ( Id. at pp. 542, 576; see also People v. Johnson (2006) 139 Cal.App. 4th 1135, 1147 ( Johnson ); People v. Venegas (1998) 18 Cal.4th 47, 82; National Research Council, The Evaluati on of Forensic DNA Evid ence (1996) p. 127 (NRCII); National Research Council, DNA Techno logy in Forensic Science (1992) p. 44 (NRCI).) The genetic traits examined to create a DNA profile are regions or loci of highly variable and repetitive DNA. The function of this type of DNA is unknown, but its polymorphic nature provides an opportunity to identify the differences between people. Because a person inherits a se t of chromosomes (22 plus an X or Y) from each parent, every genetic locus has two versions (alleles). For statistical analysis, the frequency with which each possible allele at eachlocus exists in various p opulations has been estimated

6 As we noted in Pizarro II, a match between the perpetrator’s and the defendant’s profiles “does not signify an absolute match between the entirety of the perpetrator’s DNA and the entirety of the defendant’s DNA, which would absolutely prove the perpetrator and the defendant are the same person. The match is actually between ... several regions of an enormo us amount of DNA, and therefore it does not absolutely prove identity. What it does pr ove is that the defendant could be the perpetrator.” ( Pizarro II, supra, 110 Cal.App.4th at p. 576.)13. through studies of population databases. Fr om these tabulated frequencies, the frequency of a perpetrator’s overall DNA profile can be estimated: the frequencies of the two alleles at every locus in a perpetrator’s profile are all assigned, then multiplied together to obtain the frequency of the entir e multilocus profile in the relevant population. This method is known as the “product rule.” The resulting frequency (s ometimes called the “rarity statistic”) can also be expressed as the probability that the profile of a person selected at random from the relevant popula tion would match the pe rpetrator’s profile. ( Pizarro II, supra, 110 Cal.App.4th at p. 567; People v. Nelson (2008) 43 Cal.4th 1242, 1259 (Nelson ).) When, as in this case, the perpetra tor’s profile consists of 15 loci, the resulting statistics establish that the profile is astronomically rare and therefore that a suspect’s possession of it is “ powerfully incriminating.” ( Johnson, supra, 139 Cal.App.4th at p. 1147.)
The advent of offender da tabases, such as CODIS, an d the ability to search these databases for a potential match to a crime scen e DNA profile has led to the resolution of many unsolved cases where no su spect had yet been identified. 7 These cold hit cases
have also raised new statistical issues regarding which statis tics are relevant and appropriate. B. Relevance of Statis tics in Cold Hit Cases
Defendant first contends the statistical evidence consisted only of random match probabilities, which Nelson, supra, 43 Cal.4th 1242 concluded ar e irrelevant. The People respond that random match probab ilities are relevant in cold h it cases. In essence, the parties disagree on the meaning of Nelson.

7 The FBI’s website states that in 2000, CODIS searches resulted in 731 cold hits, and in 2012, they resulted in 153,215 hits. (h ttp://www.fbi.gov/about-us/lab/biometricanalysis/codis/codis_brochure , as of April 30, 2013.)14. At the trial in this case, the analyst presented the statistics as random match probabilities. She stated that “[t]he statistical chance that [she] w ould pick an unrelated
individual at random that would have the sa me profile” “would be approximately one in two septillion [two followed by 24 zeros] African-Americ ans, [one] in 270 sextillion [270 followed by 21 zeros] Caucasians, and [one] in 56 sextillion [56 followed by 21 zeros] Hispanics.” She reported them “in thr ee different ethnic groups, the most popular ethnic groups in the United States to show th at the number is rare across the board. [¶] ... [¶] We are giving you the rarity of th e profile found on the car, so to me it has no ethnic race. So we’re showing you an exampl e of approximately how rare this is across the board.” She said, “The apparent blood on the taxi, what this number is related to means that this profile is extr emely rare and it is the same as the reference sample from [defendant].”
In Nelson, supra , 43 Cal.4th 1242, a cold h it case cited by both parties, the prosecution presented similarly astronomical statistics, also calculated by the product rule. ( Id . at pp. 1249, 1259.) After determining th at use of the produc t rule in cold hit
cases was not a new scientif ic technique requiring a Kelly 8 hearing ( Nelson, supra, at pp. 1260-1265), the court turned to the question of whether statistical evidence obtained by use of the product rule is relevant in a cold hit case. The court explained:
“‘Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. C ode, § 210.) “‘The test of relevance is whether the evidence tends, “logi cally, naturally, and by reasonable inference” to establish mate rial facts such as identity, intent , or motive.’”’ ( People v. Wilson, supra , 38 Cal.4th at p. 1245.) Under this test, the product rule generates relevant ev idence even in a cold hit case. “It is certainly correct that, as one treatise that discussed this question put it, ‘the picture is more complicated when the defendant has

8 People v. Kelly (1976) 17 Cal.3d 24.15. been located through a da tabase search ....’ ([4 Faigman et al., ]Modern Scientific Evidence[ (2006) Objec tions to DNA evidence—Presenting incriminating DNA results—Should match probabilities be excluded?— The effect of a database search,] § 32:11, p. 111.) [The court in United States v. Jenkins (D.C. 2005) 887 A.2d 1013 ( Jenkins )] recognized this circumstance. It explained that in a non-cold-hit case, the number derived from the product rule ‘represents two concepts: (1) the frequency with which a particular DNA profile would be expected to appear in a population of unrelated people, in other words, how rare is this DNA profile (“rarity statistic”), and (2 ) the probability of finding a match by randomly selecting one profile from a population of unrelated people, the so-called “random match probability.”’ ( Jenkins , supra, 887 A.2d at p. 1018.) “The [ Jenkins ] court explained that the government had conceded ‘that in a cold hit ca se, the product rule derived number no longer accurately represents the probability of finding a matching profile by chance. The fact that many profiles have been searched increases the probability of finding a match.’ ( Jenkins, supra , 887 A.2d at p. 1018, fn. omitted.) The footnote in the middle of this quotation elaborated: ‘In other words, the product rule number no longer accurately expresses the random match “probability.” That same product rule number, however, still accurately expresses the rarity of the DNA profile. Random match probability and rarity, while both identical numbers, represent two distinct and separate concepts. Only one of those concepts is affected by a database search: the random match probability.’ ( Id . at p. 1018, fn. 7.) The court noted that ‘the “database match probab ility” [the approach suggested in the NRCII] more accurately repr esents the chance of fi nding a cold hit match’ and ‘can overcome the “ascertainment bias” of database searches. “Ascertainment bias” is a term used to describe the bias that exists when one searches for something rare in a set database.’ ( Id . at pp. 1018

- 1019.) “Although the product rule no long er represents the random match probability in a co ld hit case, the Jenkins court ultimately agreed with the government’s argument ‘that regardless of the database search, the rarity statistic is still accurately calculatedand appropriately considered in assessing the significance of a cold hit.... [W]hile a database search changes the probability of obtaining a match, it does not change how rare the existence of that specific profile is in society as a whole.... This rarity is ... both consistent and relevant regardless of the fact that [the defendant’s] identification is the product of a database search.’ ( Jenkins, supra, 887 A.2d at p. 1019.)16. “In a non-cold-hit case, we said that ‘[i]t is relevant for the jury to know that most persons of at least ma jor portions of the general population could not have left the evidence samples.’ ( People v. Wilson, supra , 38 Cal.4th at p. 1245.) We agree with other courts that have considered the question (the Court of Appeal in this case; People v. Johnson, supra , 139 Cal.App.4th 1135; and Jenkins, supra , 887 A.2d 1013) th at this remains true even when the suspectis first located through a database search. The database match probability ascertain s the probability of a match from a given database. ‘But the database is not on trial. Only the defendant is.’ (Modern Scientific Evidence, supra , § 32:11, pp. 118-119.) Thus, the question of how probable it is that the defendant , not the database, is the source of the crime scene DNA remains relevant. ( Id . at p. 119.) The rarity statistic addresses this question.” (Nelson, supra, 43 Cal.4th at pp. 1266- 1267.)
Nelson ’s quotations from Jenkins and its use of the te rm “rarity statistic” do suggest that Nelson concluded the statistics generated by the product rule are relevant in
cold hit cases only when stated as a profile freque ncy (which the government in Jenkins called the “rarity statistic”). But, on further consideration, we believe Nelson concluded more broadly that both the frequency and th e random match probability are relevant in cold hit cases. We will explain. Despite Nelson ’s confusing use of the term “rar ity statistic,” the court spoke in
broad terms of the relevance an d admissibility of statistics calculated by the product rule , which would include both frequ encies and random match proba bilities. For example, the court stated: “[T]he product rule generates relevant evidence even in a cold hit case.” (Nelson, supra, 43 Cal.4th at p. 1266, italics added.) And it stated: “The conclusion that
statistics derived from the product rule are admissible in a cold hit case does not mean that they are the only statistics that are relevant and admissible.” ( Id. at p. 1267, fn. 3, initial italics added.) Furthermore, Nelson ’s use of the terms “frequency” and “random match probability” demonstrates that the court was not drawing a distinction between the two. For example, in the introduction to the case, Nelson stated: “The prosecution presented
evidence that the odds that a random person unrelated to defendant from the population17. group that produced odds most fa vorable to him could have fit the profile of some of the
crime scene evidence are one in 930 se xtillion (93 followed by 22 zeros).” (Nelson,

supra, 43 Cal.4th at p. 1247, italics added.) Then, two pages later, in the fact section, the court stated: “At trial, over objection, th e prosecution presented evidence that the DNA profile on the vaginal swab would occur at random among unrelated individuals in about one in 950 sextillion African-Americans, one in 130 septillion Cauc asians, and one in 930 sextillion Hispanics.” ( Id. at p. 1249, italics added.) Th e first statement is in the form of a random match proba bility—the odds that a random ly chosen person in the population would have this pr ofile—and the second is in the form of a frequency—how often the profile occurs in the population. Later, Nelson stated: “This record indicated that, in a cold hit case, four different methods for calculating the statistical significance of a match have been suggeste d.... One method is the random match probability calculated by use of the product rule. The issue before us is whether this approach is admissible in a cold hit case.” (Nelson, supra, at p. 1261, italics added.) A secondary source confirms the holding in Nelson. In a legal treatise, Justice
Chin—who wrote Nelson —stated: “The rarity of th e DNA profile shared by the perpetrator and defendant, expressed by the random ma tch probability statistic , is always relevant and admissible, even in cold hit cases where th e defendant was originally
identified in a database search: ‘“[I]t is relevant fo r the jury to know that most persons of at least major portions of the general pop ulation could not have left the evidence samples.” [Citation.] We agre e ... that this remains true ev en when the suspect is first located [through] a database search.’ ( People v. Nelson [, supra, ] 43 Cal.4th [at p.] 1267.)” (Chin et al., Forensic DNA Ev idence: Science and the Law (The Rutter Group 2012) Statistics for Autosoma l STR Profiles, § 5:4, p. 5-9.) We entirely agree with the conclusi on that both the frequency and the random match probability are relevant in cold hit cases. They are, after all, two ways of representing the same thing, the same numbers couched in different concepts. We are18. puzzled, however, by Nelson ’s statement that “[t]he fact that the match ultimately came about by means of a database search does not de prive the rarity statistic of all relevance.” (Nelson, supra, 43 Cal.4th at p. 1267.) (We now take Nelson ’s use of “rarity statistic” to refer to both the frequency and the random match probability, rather than just the frequency.) Understandably, defendant argues that this statement means the database search deprives the statistic of most of its relevance. He sa ys the statement renders the statistic “minimally relevant” and “mostly irrelevant” in co ld hit cases, such that it provides little weight, even though it remains admissible.
We find Nelson ’s choice of words curious because it seems to us that the statistics (both the frequency and the ra ndom match probability) lose none of their relevance when
a match is found in a database . First, both refer to the perpetrator’s profile and therefore are unaffected by any particular defendant or suspect. The freque ncy assesses how few people possess the perpetrator’s profile, a nd the random match probability assesses how unlikely it is that a random person possesses the perpetrator’s profile. They have nothing to do with a particular defe ndant or suspect, or the manner in which he was found, and they can be calculated before any suspect is located. Th ey are fixed and unchanging. When a suspect is located by whatever means, the freque ncy and probability of the perpetrator’s profile remain th e same. They give the jury perspective on how few people are likely to have this profile and how in criminating it is that the defendant has it— regardless of how he was found. Furthermore, both statistics refer to the rarity of the profile in the relevant population(s) . In general, an offender database is not the relevant population. Thus, we think the chance of finding a match in a database generally does not matter. And we
think Nelson agrees. (Nelson, supra, 43 Cal.4th at p. 1267 [“The database match probability ascertains the probability of a match from a given database. ‘But the database is not on trial. Only the defendant is.’”].) But defendant argues, as others do, that the random match probability is not relevant in cold hit cases beca use the match to the19. particular defendant, made by searching an offender database, is not random. In our opinion, this misses the point. The point is th e rarity of, or the chance of finding, the perpetrator’s profile in the perpetrator’s population(s). The chance of finding a particular defendant in an artificially created “populati on” of criminals and arrestees is not germane. Assume that a particular defe ndant is identified after searching a database containing the DNA profiles of 1,000 musicians. Does the search itself or the population of musicians affect the rarity of the perpetrator’s profile in the relevant population (rarity statistic), or the probability of findi ng the perpetrator’s profile in the relevant population (random match probability)? Even though a particular defendant is found by searching a particular database, that database does not necessarily become the relevant population for gauging the rarity of the perpetrator’s profile in a meaningful way. Is it helpful to know that one musician in a population of 1,000 mu sicians matched the perpetrator’s profile, or
that the chance a musician ra ndomly chosen from a database of 1,000 musicians would match the perpetrator’s profile is one in 1,000? We think this info rmation does not help us (or jurors) gauge the profile’s rarity in a meaningful way. Similarly, when a particular defendant is found by searching an offender database,
that database of criminals and arrestees does not necessarily become the relevant population for gauging the rar ity of the profile in a meaningful way. The relevant populations(s) are generally the major popula tions in the United States because they provide a jury with the most useful estimates, regardless of the fact that the particular defendant was found as a match by look ing through a diffe rent population.
As we stated in Johnson , and as the FBI explains, a cold hit from a database search is an investigative lead identifying a su spect who might be the perpetrator. ( Johnson,

supra, 139 Cal.App.4th at pp. 1150-1151; http://www.fbi. gov/about-us/lab/biometricanalysis/codis/codis-and-ndis-fa ct-sheet, as of April 30, 2 013.) We do not view it as identification of the perpetrator in the perpetrator’s population. We explained in
Johnson :20. “This brings us to our core poi nt: the database search merely provides law enforcement w ith an investigative tool, not evidence of guilt. [Citation.] ... [¶] In our view, th e means by which a particular person comes to be suspected of a cr ime—the reason law enforcement’s investigation focuses on him—is irrelevant to the issue to be decided at trial, i.e., that person’s guilt or innocence, except insofar as it provides independent evidence of guilt or innocence. For example, assume police are investigating a robbery. The victim identifies ‘Joey’ as the perpetrator. The means by which ‘Joey’ becomes th e focus of the investigation—the eyewitness identification—is relevant b ecause that identification is itself evidence of guilt. Suppos e instead that a surveilla nce camera captures the robbery on tape. Police use facial recognition software to check the robber’s facial features against dr iver’s license photographs. When the computer indicates a match with ‘Joey,’ officers obtain his name and address from DMV records, then go to hi s house and interview him. In the course of the interview, ‘Joey’ co nfesses. Whether facial recognition software is discerning and accurate enough to select the perpetrator, or whether it declared a match invo lving many different people who resembled ‘Joey,’ or how many driver’s license photographs were searched by the software, is immaterial: what ma tters is the subsequent confirmatory investigation. “Stated another way, the fact that the perpetrator’s features appear to match those of someone in the DMV da tabase does not affect the strength of the evidence against ‘Joey’; it is simply a starti ng point for the investigation. Similarly, the fact that here, the genetic profile from the evidence sample (the perpetrator’s profile) matched the profile of someone in a database of criminal offenders , does not affect the strength of the evidence against appellant. The strength of the evidence against him (at least in terms of the DNA evidence) depends upon the confirmatory match between his profile and that of the perpetrator, and the calculation of the frequency of the perpetrator’s profile in the relevant population. That population is the populati on of possible perpetrators , not the population of convicted offenders whose DNA has been entered into CODIS. The fact appellant was first identified as a possible suspect based on a database search simply does not matter.” ( Johnson, supra, 139 Cal.App.4th at pp. 1150-1151, fns. omitted.) Defendant asserts that the prosecution in this case should have introduced an alternative statistic, such as the database match probability mentioned by Jenkins and
Nelson. (See Nelson, supra, 43 Cal.4th at p. 1262.) We ack nowledge that if the chance of finding a particular defendant in an artif icially created “popula tion” of criminals and21. arrestees is the point, then an appropriate statistic should be determined. The database match probability is a statistic th at is modified by the size of the database searched. It “was suggested [by NRCII]. [U]nder this approach, ‘the expect ed frequency of the profile could be calculated through use of th e product rule, and the result could then be multiplied by the number of profiles in the databank. The result would be the expected frequency of the profile in a sample the size of the databank and thus the random chance of finding a match in a sample of that size. The result may be significant when few loci are tested and the discriminatory power of th e testing is limited, but the significance tends to disappear when many loci are tested.’ [Citation.] The Jenkins court called this method the ‘database match probability’ because it gives the probability of a match from the database. [Citation.]” ( Ibid. , fn. omitted.) 9
Defendant notes that in this case no ev idence was presented on the size of the database searched. But the analyst did state that CODIS compared defendant’s profile to all the profiles entered in the state and nati on. Thus, we might assume that in 2009, CODIS contained approximately nine million profiles. (See fn. 4, ante. ) Using that number as the approximate size of the offend er database, we would multiply the one-insome-number fractions by nine million with th e following results: one in two septillion (two followed by 24 zeros ) would become one in 220 quadrillion (220 followed by 15 zeros); one in 270 sextillion (270 followe d by 21 zeros) would become one in 30 quadrillion (30 followed by 15 zeros); and one in 56 sextillion (56 followed by

9 Nelson gave an example to help explain th is method: “Assume the product rule calculated random match odds of one in 1,000,000. If a single suspect were compared and a match found, the result would be surp rising unless the suspect were the actual donor of the evidence. But if a database of 100,000 were searched, the odds—or database match probability—would be about one in 10 that a match would be found even if the actual donor were not in the database. Thus, a match would be less surprising. If the database had a million profiles, at leas t one match would be expected even if the actual donor was not in the databa[se].” (Nelson, supra, 43 Cal.4th at p. 1262.)22. 24 zeros) would become one in 6.2 quadrillion (6.2 followed by 15 zeros). These numbers are certainly more favorable to de fendant, making the profile more common, but they are still astronomical. 10 The 15-loci profile in this cas e is so astronomically rare in the most common populations in the United States that even when the st atistics are multiplied by nine million, the pr ofile remains astronomically rare in the CODIS offender database. We do not believe the jurors would have fo und these numbers—quadrillions instead of sextillions and septillions—significan tly less compelling. We conclude that use of the database match probability in this case would not likely have made a difference, and therefore any error in its om ission, an error thatwe do not find, was harmless. ( People v. Watson (1956) 46 Cal.2d 818, 834-835.) In sum, the evidence in th is case was of a 15-loci profile so rare, in terms of the total world population, that it constituted “powerfully incrimina ting evidence.” ( Johnson,

supra, 139 Cal.App.4th at p. 1147 .) This is so even assuming the calculations, or manner in which they were described for or presente d to the jury, were so mehow inaccurate in terms of precisely what statis tic they represented. (See McDaniel v. Brown (2010) 558 U.S. 120, 124, 132 [DNA evidence with ran dom match probability of one in 3,000,000 remained “powerful[ly ] inculpatory ev idence” even though expe rt overstated probative value and testing after trial showed ran dom match probability of one in 10,000]; People
v. Robinson (2010) 47 Cal.4th 1104, 1142 (Robinson ) [while DNA profile match does not guarantee individual is guilty, studies have shown that the chance a positive match does

10 Statistics in cases like this one, especia lly where the profile includes 13 to 15 loci, are typically described as “astronomical” (e.g., Nelson, supra, 43 Cal.4th at p. 1259) because the denominators are incredibly large, but becaus e the statistics are fractions, they are actually incred ibly small. In other words, th e frequency of the profile in the relevant population(s) is extremely rare, and the chance that a randomly chosen person in the relevant population(s) w ould match is extremely low.23. not belong to same pers on may be less than one in 500 million].) The statistical evidence
was relevant and substantial.
C

. Statistic from Asian Population *
Defendant also maintains th at the prosecution was required to provide a statistic
derived from an Asian databa se because defendant is Asia n, and he argues that the analyst’s opinion that a Hmong statistic woul d not be significantly different from the other ethnic statistics was specula tive, baseless, and insubstantial.
1. Facts On direct examination, the analyst expl ained that the three most popular ethnic populations in the United States were used “to show that the number is rare across the board.” She explained that she did not use an Asian population: “We are giving you the rarity of the profile found on the car, so to me it has no ethnic race. [W]e’re showing you an example of approximately how rare this is across the board. So ... the blood on the
car has no race to me.” On cross-examination, the analyst explai ned that the statistic s she provided were
the statistics “from the blood on the vehicle,” “the unknow n blood from the evidence.”
“It is the statistical chance that I would choose someone at random that would have the same DNA profile as the DNA off the appare nt blood from the vehicle.” Thus, even though she learned that defe ndant was Hmong, sh e did not calculate the probability in a Hmong population. She believe d databases for Asian populatio ns existed and she agreed that the random match probability might be different and might be lower. Defense counsel attempted to explain what he meant by “lower” in this contex t: “And when I say ‘lower,’ you know, the highest number you’ve got is in your comparison against AfricanAmericans .... [¶] ... [¶] If you compared [the three numbers] to other Asian or southeast Asian or Hmong, it would be lowe r than the numbers you see on this piece of

* See footnote, ante , page 1.24. paper?” The analyst’s response and the disc ussion that followed demonstrated that the analyst and both counsel understood “lower” to mean a lower rarity (such that the profile
would occur more frequently in the population), not a lower frequency or probability of a
random match: “A The fact that I gave the bl ood on the vehicle the statistic, I don’t know what ethnicity the blood on the vehicle is. So to me in our daily procedures at DOJ we give a st atistic in the mostpopular ethnicities in the United States of America, so African-Americans, Caucasians and Hispanics, to show that ac ross the board this profile’s rare. [¶] Would it be different if I compared it to a Hmong da tabase? Yes. Would it be lower? Maybe. But at the same time it wouldn’t be significantly lower. “Q What you’re saying is that wh en you pulled the blood off this vehicle ..., you didn’t know the ethni city of that blood; is that right?
“A No. “Q But you knew the ethnicity of the suspect after you got the CODIS hit, didn’t you? [¶] ... [¶] “[A] Yes. “[Q] And you didn’t rerun it agai nst the database of other people from that ethnicity?
“A Because that’s not in our daily procedures, no. “Q And if you run it against a pe rson of his ethnicity or a group of people of his ethnicity, the coincidence wouldn’t be as rare?
“A I don’t know. “Q And you don’t know because you didn’t do that?
“A Yes.” On redirect, the analyst repeated that using the three ethnic populations provides “approximations of how rare a prof ile is.” Because it is impossi ble to test everyone in the world, estimations are all that can be produce d. The DOJ’s statistical protocol was the same regardless of the case. The analyst had never used an Asian database or an Indian25. database in her analyses, although she was sure it had been done. The DOJ protocol, however, used the allele frequencies generated by the FBI in the three populations. She
stated that if the number would have been lower in a Hmong database, “[i]t wouldn’t have been significantly lower.” On recross-examination, she agreed that she did not
know if the number would have been lo wer because she had not calculated it.
2. Asian Statistic Defendant argues: “Given that the Peopl e’s theory was that the perpetrator was Asian, it was the People’s burde n to provide a relevant statis tical analysis demonstrating the rarity of the profile in the Asian popul ation.” This statement is incorrect. The prosecution’s theory was not that the perpetrator was Asian. It was that the perpetrator
was a male with a certain 15 -locus genetic profile. The perpetrator’s ethnicity was
unknown . For this reason, the prosecution presente d statistical data for occurrence of the perpetrator’s DNA profile in the three mostcommon ethnic populations. As we will explain, this practice has been approved by the Supreme Court in Wilson, supra, 38
Cal.4th 1237.
In Wilson , as in this case, the prosecution pr esented evidence of the frequency of the perpetrator’s profile in the three mo st common population groups in the United States—Caucasian, African-American, and Hispanic—despite the fact there was no evidence of the race or ethnicity of the perpetrator aside fro m evidence that the defendant was the perpetrator. ( Wilson, supra, 38 Cal.4th at p. 1240.) Wilson agreed with our condemnation of the presentation of only a statistic calculated from the defendant’s ethnic population. ( Id. at p. 1243; People v. Pizarro (1992) 10 Cal.App.4th 57, 93-94; Pizarro II, supra, 110 Cal.App.4th at pp. 629-631 & fn. 79.) And Wilson rejected the notion that the evidence before it was impr operly admitted b ecause frequency ranges were given only for the three most common po pulation groups, rather than all possible groups to which the perpetrato r could have belonged. ( Wilson, supra, at pp. 1249-1250.) The court stated: “Although giving results for all possible population groups would be26. permissible, doing so is not required to gi ve relevance to the range of possibilities. Furthermore, it is not clear whether it is real istically feasible to include all population groups.” ( Id. at p. 1250.) “‘By presenting the datafor the major racial components of the population, when there is no independent evidence of the perpetrator’s race, the prosecution presents the data necessary for th e jury to evaluate th e likelihood that the crime scene DNA came from someone other than the defendant.’” ( Id. at p. 1247.) The court concluded: “In this case, [the analys t] provided informati on regarding the three most numerous population groups. This made her testimony relevant and admissible.” ( Id. at p. 1250.) A few years later, in People v. Doolin (2009) 45 Cal.4th 39 0, the Supreme Court
cited Wilson and concluded: “The prosecution in this case presented DNA frequency
statistics for the African-Ameri can, Caucasian, and Hispanic population groups. Since [Doolin’s] trial, we have concluded that expert testimony on DNA profiling frequencies for these specific population groups is admiss ible even in the absence of independent evidence of the perp etrator’s ethnicity. [Citation.]” ( People v. Doolin , supra , at p. 449.)
And even more rece ntly, the court in People v. Cua (2011) 191 Ca l.App.4th 582 ( Cua ) noted: “‘“One strangely persistent falla cy in the interpretation of DNA evidence is that the relevant ethnic or racial population in which to estimate a DNA profile frequency necessarily is that of the defendant. The issue has been cogently analyzed, and it should be clear that the relevant population is the entire class of plausible perpetrators.”’ ( People v. Wilson, supra , 38 Cal.4th at p. 1243, quoting Kaye, Logical Relevance [: Problems with the Reference Population and DNA Mixtures in People v. Pizarro, (2004)] 3 Law, Probability & Risk at p. 211.) As Professor Kaye notes, ‘it is critical to understand the limited role that th e defendant’s ethnic or racial status plays in evaluating the ev idence of a match.... The relevant population consists of all people wh o might have been the source of the evidence sample. In most cases, this will not be people with a defendant’s peculiar ancestry, but people of many ethnic groups.’ (Kaye, DNA Evidence [: Probability, Population Ge netics, and the Courts (1993)] 7 Harv. J.L. & Tech. 101,] 137

- 138.)” ( Cua, supra, 191 Cal.App.4th at p. 602.)27. As these authorities attest, an ethnic stat istic based on defendant’s ethnicity was not required and use of the three common populations was appropriate.
Defendant argues that Wilson addressed only admissibili ty, not sufficiency to support a conviction, and that an Asian st atistic was required to make the evidence
substantial in this case. For the reasons we have explained, this is incorrect. We also note that there was no evidence suggesting th at either the perpetrator or defendant belonged to an unusually isolated Asian subgr oup, which might have affected the allele frequencies. (See NRCII, supra, at p. 122.) 11 3. Expert Opinion Regarding Hmong Statistic Defendant challenges the analyst’s opinion that a Hmong statistic would not have been significantly different from the other et hnic statistics was unsupported and did not
constitute substantial evidence. An expert witness may testify on “a s ubject that is suffici ently beyond common experience that the opinion of an expert woul d assist the trier of fact” and “[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Evid. Code, § 801.)

11 “Sometimes there is evid ence that the suspect and other possible sources of the sample belong to the same subgroup. That can happen, e.g., if they are all members of an isolated village. In [that] case, a modifica tion of the procedure is desirable. [¶] Recommendation 4.2: If the particular subp opulation from which the evidence sample came is known, the allele frequencies for th e specific subgroup should be used as described in Recommendation 4.1. If alle le frequencies for the subgroup are not available, although data for the full population are, then th e calculations should use the population-structure Equations 4.10 for each locus, and the resulting values should then be multiplied.” (NRCII , supra, at p. 122, boldface omitted.)28. In this case, the jurors were instru cted with CALCRIM No. 332 as follows: “Witnesses were allowed to testify as experts and to give opinions. You must consider the opinions, but y ou are not required to accept them as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opi nion, and the facts or information on which the expert relied in reaching th at opinion. You must decide whether the information on which the expert relied was true and accurate. You may disregard any opinion that you find unb elievable, unreliable, unreasonable, or unsupported by the evidence. [¶] [An expert witness may be asked a hypothetical question. A hypothetical question asks the witness to assume certain facts are true and to give an opinion based on the assumed facts. It is up to you to decide whether an a ssumed fact has been proved. If you conclude that an assumed fact is not true, consider the effect of the expert’s reliance on that fact in evaluating the ex pert’s opinion.] [¶] [If the expert witnesses disagreed with one another, you should weigh each opinion against the others. You should examin e the reasons given for each opinion and the facts or other matters on which each witness relied. You may also compare the experts’ qualifications.” According to this instructi on, the jurors may have chosen to believe the analyst’s opinion, believing it was based on her experience and education, but they were also free to disregard the opinion if they believed it was speculative or baseless. Finally, defendant was not precluded from presenting his ow n expert with a different opinion. D. Source Attribution Defendant also argues the analyst’s opini on that defendant was “the same person”
as the unknown male who left the blood in the taxi was improper because it was speculative, unfounded, and tantamount to an opin ion of defendant’s guilt. We reject this contention for the reasons explained by the court in Cua, supra, 191 Cal.App.4th 582, when it held this type of statement was not improper. “Almost 15 years ago, the 1 996 [NRCII] Report observed that ‘[w]ith an increasing number of loci av ailable for forensic analysis, we are approaching the time when each person’s profile w ill be unique (except for identical twins and possibly othe r close relatives).’ ([NRCII], supra,29. p. 161.) ‘Because more population dataand loci already are available, and still more will be available soon, we are approaching the time when many scientists will wish to offer opinions about the source of incriminating DNA. [¶] ... There might already be ca ses in which it is defensible for an expert to assert that, assuming that th ere has been no sample mishandling or laboratory error, the profile’s probabl e uniqueness means that the two DNA samples come from the same person.’ ( Id. at p. 194.) It has been calculated that the average random match proba bility for unrelated individuals for even 13 STR loci is less than one in a trillion, ev en in populations with reduced genetic variability. (Chakraborty et al., The Utility of Short Tandem Repeat Loci Beyond Hum an Identification: Implications for Development of New DNA Typing Systems (1999) 20 Electrophoresis 1682, 1688.) “Some courts have already rec ognized that, dependent upon the strength of a match, ‘it might be approp riate for the expert to testify that, except for identical twins or maybe clos e relatives, “‘it can be concluded to a reasonable scientific certainty that the evidence sample and the defendant sample came from the same person.’” [Citations.]’ (Nelson, supra, 43 Cal.4th at p. 1262, fn. 1; see People v. Johnson [, ( supra ),] 139 Cal.App.4th [at p.] 1146, fn. 10; see also People v. Wilson, supra, 38 Cal.4th at pp. 1248-1249; People v. Barney, supra, 8 Cal.App.4th at p. 817; People v. Allen [ (1999)] 72 Cal.App.4th [1093, ]1 097 [expert concluded ‘“within a reasonable degree of scientific certainty”’ that defendant was the source of the semen stain based on PCR test matching at a total of nine genetic markers].) “Our Supreme Court has recently r ecognized that a genetic profile can be sufficiently unique to be a constitutionally su fficient description of a suspect in support of an arrest warrant. ( People v. Robinson [, supra ,] 47 Cal.4th 1104 ( Robinson ).) The court agreed that ‘“a DNA profile is arguably the most discrete, exclusiv e means of personal identification possible[ ]” ... [and that] “‘[a] genetic code describes a person with far greater precision than a physical desc ription or a name.’ [Citation.]” [Citation.]’ ( Id. at p. 1134, citations omitted.) In Robinson, there was a DNA match at 13 loci, and the prosecutio n expert testified that there had been no reported cases of two people who are not identical twins matching at all 13 loci. ( Id. at p. 1115.) The court fu rther observed that ‘[w]hile a DNA profile match does not guarantee th at the individual matched is guilty of the charged offense, studies have shown that the chance a positive match does not belong to the same person ma y be less than one in 500 million.’ ( Id. at p. 1142, citing inte r alia Moyer & Anway, Biotechnology and the Bar: A Response to the Growing Di vide Between Science and the Legal30. Environment (2007) 22 Berkeley Tech L.J. 671, 684, fn. 64.) The United States Supreme Court has said that ‘[m]odern DNA testing can provide powerful new evidence unlike anything known before. Since its first use in criminal investigations in the mid-1 980s, there have been several major advances in DNA technology, culminati ng in STR technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty.’ ( District Attorney’s Office for Third Judicial Dist. v. Osborne [ (2009) 557 U.S. 52, 62].) Our growing experience with use of DNA databases containing genetic samples from known offenders to provide ‘cold hit’ matches of crime scene samples with DNA profiles of criminal suspects belies Cua’s argum ent, unsupported by any expert opinion, that [the criminalist’s] tes timony was ‘scientifically invalid.’ (See, e.g., Nelson, supra, 43 Cal.4th 1242.) “The cases cited by Cua do not support his position. In Nelson the criminalist, as here, comp ared 15 loci and found a match at each one. (Nelson, supra, 43 Cal.4th at p. 1259.) ‘The prosecution presented evidence that the odds that a random pe rson unrelated to defendant from the population group that produced odds mo st favorable to him could have fit the profile of some of the crime scen e evidence [were] one in 930 sextillion (93 followed by 22 zeros).’ ( Id. at p. 1247.) Because of these ‘astronomical odds’ and the fact that [the] world’s total population is only about seven billion, the court recognize d that ‘this evidence is tantamount to saying that defendant left th e evidence at the crime scene.’ ( Id. at pp. 1259, 1247.) As [NRC II] noted, the difference between a vanishingly small probability and an opinion of uni queness is ‘slight.’ ([NRCII], supra, p. 195.) [¶] ... [¶] “We know of no categorical prohibition, at least in this state, on source attribution—expression by an otherwise qualified expert of an opinion that the quantitative and qu alitative correspondence between an evidentiary sample and a known sa mple from a defendant establishes identity to a reasonable sc ientific certainty. Th e reported cases and the scientific literature suggest otherwise. Although the same evidence, and the reports of prosecution experts, we re available to Cua for his own examination and analysis, Cua offers no expert opinion that the conclusion reached by the crim inalist lacked factual supp ort and was ‘scientifically invalid.’ Here a match was made between Cua and the single-source sample from the vehicle by a qualified DNA expert, as in Nelson, at 15 separate loci. While the criminalist was not asked to calculate the rarity statistic of such a match using the produ ct rule, we can read ily infer that the odds would also be here, as in Nelson, ‘astronomical’ and ‘tantamount to saying that defendant left the ev idence at the crime scene.’ (Nelson, supra,31. 43 Cal.4th at pp. 1259, 1247.)” ( Cua, supra , 191 Cal.App.4th at pp. 598- 601, fns. omitted.)
E. Non-DNA Evidence * Defendant contends that, in light of what he describes as insubstantial DNA evidence, the non-DNA evid ence was not sufficient to support the convictions. We have already concluded that the DNA evidence was substantial evidence supporting the convictions. The non-DNA eviden ce, although not extensive, added to the probability that defendant was th e perpetrator. Defendant liv ed less than a mile from the
crime scene. He suffered an injury around March 2009, which bled and left him with a large scar on his forehead. His explanation was that Mexicans hit him with a two-by-four in an alley. He admitted he had stolen and so ld his father’s .30-caliber gun. He yawned excessively during the interview, but only afte r the detectives confronted him with the murder. When left alone after the interview, he checked the door, then got up on the table and pushed up a ceiling tile, sugg esting he was looking for an escape. Considering this evidence in addition to the substantial DNA evidence, the evidence supporting defendant’s conviction was more than sufficient. “An ‘appellate
court’s reversal for insufficien cy of the evidence is in effect a determination that the government’s case against the defendant was so lacking that the trial court should have entered a judgment of acquittal.’ [Citation.]” (McDaniel v. Brown, supra, 558 U.S. at p. 131.) Defendant was not entitled to a judgm ent of acquittal here, nor is he entitled to
reversal for insufficien t evidence on appeal.
II. Ineffective Assistance of Counsel * Defendant argues his trial counsel was ine ffective for failing to (1) object to the irrelevant random match proba bility DNA evidence, (2) request a limiting instruction to

* See footnote, ante , page 1.

* See footnote, ante , page 1.32. prevent the jury from c onsidering the statistics as evid ence of random match probability, (3) object to the expert’s opinion that a Hmon g statistic would not besignificantly lower, and (4) object to the expert’s source attribution opinion. For all of the reasons we have explaine d, we see no prejudice to defendant based on any failure by defense counsel. Because we find no resulting prejudice, we need not address whether the performance of counsel was deficient. ( Strickland v. Washington (1984) 466 U.S. 668, 697; People v. Hester (2000) 22 Cal.4th 290, 296-297 [if on review court finds that alleged incompetence of co unsel was not prejudicial, court need not address whether counsel’s actions were deficient].)
III. Section 654 * Lastly, defendant contends the trial court erred in failing to stay the sentence for his possession of a firearm in count 2 pursuant to section 654. He explains that the only evidence he possessed a gun was the inference that he fired a gun in the commission of the murder and robbery. We disagree. Section 654, subdivision (a) provides in re levant part: “An act or omission that is punishable in different ways by different pr ovisions of law shall be punished under the provision that provides for the longest pote ntial term of imprisonm ent, but in no case shall the act or omission be punished under more than one provisi on.” Section 654 has been interpreted to prohibit multiple punishment s for a single act or an indivisible course of conduct. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) “Whether a course of criminal conduct is divisible and therefore gi ves rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of
such offenses but not fo r more than one.” ( Ibid. ) On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives independent of and not

* See footnote, ante , page 1.33. merely incidental to each other, the trial court may impose punish ment for independent violations committed in pursuit of each objec tive even though the violations shared common acts or were part of an otherwis e indivisible course of conduct. ( People v.
Centers (1999) 73 Cal. App.4th 84, 98; People v. Cleveland (2001) 87 Cal.App.4th 263, 267-268.)
“The determination of whether there wa s more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial. [Citation.] The factual finding that there was more than one objective must be supported by substantial evidence. [Citation.]” ( People v. Saffle (1992) 4 Cal.App.4th 434, 438.) “We review the tria l court’s determination in the light most favorable to the respondent an d presume the existence of every fact the trial court could reasonably deduce from the evidence.” ( People v. Jones (2002) 103 Cal.App.4th 1139, 1143 ( Jones ).) “[S]ection 654 is inapplicab le when the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm.” ( Jones,

supra, 103 Cal.App.4th at p. 1145 .) In contrast, section 65 4 bars multiple punishment
when the evidence shows that, at most, fortuitous circum stances put the firearm in the
defendant’s hand at the instant of committing another offense. ( People v. Vang (2010) 184 Cal.App.4th 912, 915-916; see also People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1413 [§ 654 did not bar mu ltiple punishment where th ere was evidence that the defendant’s possession of the firearm “was not merely simultaneous with the robberies, but continued before, during and after those crimes”].)
In Jones, separate punishment for felony firearm possession and shooting at an inhabited dwelling was upheld where the evid ence was sufficient to allow the inference that the defendant’s “possession of the fire arm was antecedent to and separate from the primary offense of shooting at an inhabited dwelling.” ( Jones, supra, 103 Cal.App.4th at p. 1147.) The court explained that the defenda nt “necessarily must have had either actual34. or constructive possession of the gun while ridi ng in the car, as evid enced by his control over and use of the gun during the shooting. Jones’s violation of section 12021 was complete the instant Jones ha d the firearm within his cont rol prior to th e shooting.” ( Ibid. ) Further, “[i]t strains reason to assume that Jones did not have possession for some period of time before firing shots at the [vic tim’s] home. Any other interpretation would be patently absurd.” ( Ibid. ) Therefore, the record suppor ted “a reasonable inference that Jones’s possession of the firearm was an tecedent to the primary crime.” ( Ibid. )
Just as in Jones, the evidence in this case was sufficient to pe rmit an inference that defendant had possession of the gun prior to getting into the taxi and prior to shooting
José. There was no evidence that fortuitous circumstances put the gun in defendant’s hand at virtually the moment he shot José—for example, that he happened to find the gun
in the back seat of the taxi or that José was wielding a gun and defendant wrested it from him. ( Jones, supra, 103 Cal.App.4th at p. 1145; see, e.g., People v. Bradford (1976) 17 Cal.3d 8, 13, 22; People v. Venegas (1970) 10 Cal.App.3d 814, 821.) It was reasonable to assume that defendant possessed the gun when he entered the taxi, which was antecedent to the primary crimes, and “[a] ny other interpretation would be patently
absurd.” 12 ( Jones, supra, at p. 1147.) Under these circ umstances, section 654 did not preclude punishment for possessi on of a firearm by a felon. IV. Abstract of Judgment *
In our review of the reco rd, we observed that defend ant’s abstract of judgment does not comport with the trial court’s oral pronouncement of judgment. “‘Where there is a discrepancy between the oral pronounceme nt of judgment and the minute order or the

12 Furthermore, the evidence permitted an inference that defendant continued to possess the gun after getting out of the taxi b ecause there was no evidence that he left it in the taxi after the shooting.

* See footnote, ante , page 1.35. abstract of judgment, the oral pron ouncement controls.’ [Citations.]” ( People v. Morelos (2008) 168 Cal.App.4th 758, 768.) “‘[A] court has the inherent power to correct clerical
errors in its records so as to make these records reflect the true facts. [Citations.] The power exists independently of statute and may be exercised in criminal as well as in civil cases. [Citation.] ... The court may correct such errors on its own motion or upon the application of the parties.’ [Citation.] Courts may correct clerical errors at any time, and appellate courts (including this one) that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts. [Citations.]” ( People v. Mitchell (2001) 26 Cal.4th 181, 185.) In its oral pronouncement of judgme nt, the trial court stayed the 20-year section 12022.53, subdivision (c) enhancement on count 1. The abstract of judgment, however, incorrectly reflects a stayed 25-year-to-life section “12022(c)” enhancement.
We will order correction of the abstract.
DISPOSITION The judgment is affirmed. The trial court is ordered to correct the abstract of judgment to reflect a stayed 20-year section 12022.53, subdivision (c) enhancement on count 1 (rather than a stayed 25-year-to-life section “12022(c)” enhancement). The clerk of the superior court is directed to forward a copy of the amended abstract of judgment to the Department of Correc tions and Rehabilitation.

_____________________ Kane, J. WE CONCUR:

_____________________ Wiseman, Acting P.J.

_____________________ Detjen, J.