Filed 5/16/ 23
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. ANDRE WILLIAM LEPERE, Defendant and Appellant. G061393 (Super. Ct. No. 21CF1170)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.

* * *2 In 1980, a 79

- year

- old woman was raped and murdered in her Anaheim
home

. P olice booked a rape kit into evidence. In 2002, a forensic scientist was able to

extract male DNA fr om the rape kit. I n 2021, police identified Andre William Lepere as

a person of interest through DNA “ Investigative Genealogy. ” Lepere was living in New
Mexico at that time , but there was evidence he had lived in Anaheim in 1980

. Police
obtained a search warrant and recovered Lepere ’ s DNA from a trash can next to his home. Lepere ’ s DNA was a match with DNA recovered from the 1980 murder victim.

A jury found Lepere guilty of the 1980 murder

. The trial court imposed a

sentence of life without the possibility of parole (LWOP). On appeal, Lepere claims the police officer ’ s affidavit in support of the search warrant lacked probable cause and the prosecutor misstated the law during the closing argument.

We find t he facts about the DNA evidence and the other corroborating facts
in the affidavit establish ed probable cause for the search. As far as the closing argument
goes , even if we assume the prosecutor misstated the law, we presume the jur ors followed
the court ’ s instructions . We also find there was overwhelming evidence of Lepere ’ s
g uilt

. Thus, w e affirm the judgment.

I

FACTS AND PROCEDURAL BACKGROUND
O n February 19, 1980, police were dispatched to an Anaheim apartment where the re was a body of 79

- year

- old woman lying on a bed

. There were no signs of forced entry into the apartment. T he victim was naked , her legs were spread apart , and
there was a pillowcase stuffed in her mouth. The victim had bruis es on her body

. There
were b ite marks on the victim ’ s lower chest and thigh. It was later discovered t he victim
had two broken ribs , tears to her vagina , and she had died from asphyxia tion

. Police

were unable to identif

y any possible suspects

.3 In 2002, the victim ’ s sexual assault (rape) kit was analyzed by the Orange County Crime Lab

. A forensic scientist was able to extract DNA from the victim ’ s vaginal swabs to create a male DNA profile

. In subsequent years, there were advances in DNA technology that ena bled forensic scien tists to further identify more DNA genetic
markers from the extracted sperm cells

.

In 2020, the cold case investigation was assigned to Anaheim Police
Detective Julissa Trapp, who sought assist ance from the FBI

. T he unknown DNA profile

was sent to a company that was able to generate a single nucle otide polymorphism (SNP) profile

. The digitized genetic data was upload ed t o a genealogy website

.

In 2021, the FBI notified Trapp that Lepere had been identified as a person of int erest

. Lepere lived in Alamogordo, New Mexico

. A n officer in New Mexico completed an affidavit in support of a search warrant of Lepere ’ s home (the affidavit will
be covered in detail in the discussion section of this opinion). After a local magistrate signed and issued the war rant, Trapp and other officers executed the search at 3:30 a.m.
Police seized beer can s and other items from Lepere ’ s outside trash can

. A couple of weeks later, Trapp received a crime lab report linking DNA collected from one of the
beer can s to the DNA profile obtained from the 1980 Anaheim murder victim

.

Lepere was arrested

. Trapp said to him , “ I want to talk to you about something that happened in Anaheim in an apartment with an elderly woman

. ” Lepere said, “ There was a . . . I was horny back then. ” Lepere said he had been with a lady in
her forties

. Trapp asked , “ Was there any other older women that you had any relationship with? ” Lepere answered, “ Not that I know of. ”

Prior to a jury tr ial, Lepere filed a motion to suppress the DNA evidence. (Pen. Code, § 1538.5.) The trial court denied the motion.

During the jury trial, the victim ’ s granddaughter t estified the victim had
divorced in the 1920s . T o the best of her knowledge, the victim had never dated or4

expressed an y interest in men thereafter

. A n eighbor testified th e victim was friendly and often sat outside her apartment and chatted with people who passed by. The neighbor
said he and his daughter called the v i ctim “ grandma

. ” The neighbor said the victim
sometimes used a can of soup to prop open her front door.

Lepere testified he was 22 years old in 1 980

. Lepere said the victim invited
him into her apartmen t ostensibly to move furniture and they ha d consensual sex

. Lepere
said about a week later, the victim again invited him inside for sex. Lepere described
these as “‘ wham bam ’” encounter s

. Lepere said after the second encounter he found out

“ a day or two later ” that the victim had been killed

.

The jury found Lepere guilty of murder and found true a special circumstance allegation (a murder during the commission of a rape) . The trial court imposed a n LWOP sentence. Lepere filed an appeal.

II
DISCUSSION Lepere clai ms th e trial court ( A) improperly denied his motion to suppress
evidence and ( B) the prosecutor committed misconduct. We shall analyze each claim

.

A. The Motion to Suppress Evidence

Lepere claims the magistrate erred in issuing the search warrant because the police officer ’ s affidavit lacked probable cause ; therefore, Lepere claims the trial court judge should have excluded the DNA evidence from the trial as well as a ny derivative
evidence (fruit of the poisonous tree)

. We disagree.

“ The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and5

particularly desc ribing the place to be searched, and the persons or things to be seized. ” (U.S. Const., 4th Amend.)

“ The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a
sub stantial basis for concluding a fair probability existed that a search would uncover wrongdoing. ” ( People v. Kraft (2000) 23 Cal.4th 978, 1040 ( Kraft ) .) “ The test for probable cause is not reducible to ‘ precise definition or quantification. ’” ( Florida v. Harris (2013) 568 U.S. 237, 243.) However, our Supreme Court has held the probable
cause threshol d “‘ is less than a preponderance of the evidence or even a prima facie

case. ’” ( People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 370 .)

“‘ The ta sk of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “ ve racity ” and “ basis of knowledge ” of persons supplying hearsay information, there i s a fair probability that contraband or evidence of a crime will be found in a particular place. ’” ( Kraft , supra , 23 Cal.4th at pp. 1040

- 1041.) “ The magistrate ’ s determination of probable cause is entitled to deferential review. ” ( Id. at
p. 1041.) Th e search “ warrant can be upset only if the affidavit fails as a matter of law to set forth sufficient competent evidence ” supporting the finding of probable cause. ( Skelton v. Superior Court (1969) 1 Cal.3d 144, 150

. )

Under the good faith exception to the exclusionary rule: “‘ Evidence obtained by police officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate is ordinarily not excluded under the Fourth Amendment,
even if a reviewing court ultimately determines the warrant is not supported by probable

cause. ’ ” ( People v. French (2011) 201 Cal.App.4th 1307, 1323.) However, the good faith exception does not apply if the affidavit is “‘“‘“ so lacking in indicia of probable

caus e ” ’”’” that an officer ’ s reliance on the warrant is objectively unreasonable. ( Ibid .)6 In this case , the affidavit in support of the nighttime search warrant is type written , single space d , and about five pages long

. It is averred to by Agent Eric Marrujo of the New Mexico State Police. In the first part of the affidavit, Marrujo states the add ress to be searched , provides a description of the home , and states what evidence is to be collected ( discarded items in the trash ). Marrujo also gives a brief summary of
his education and law enforcement experience.

In the probable cause portion of the affidavit , Marrujo states he was assigned to assist Detective Trapp with the 1980 Anaheim homicide investigation. Marrujo then provides a fairly detailed description of the crime scene

. Marrujo
summarizes the Orange County C rime Lab ’ s D NA investigation , and the FBI ’ s recent involvement through “ Investigative Genealogy

. ” The affidavit state s : “ On October 2, 2020,

. . . the unkno wn DNA profile was sent to DNA Solutions to possibly develop a
SN P (single nucleotid e polymorphism ) to assist with the investigative genealogy. On December 21, 2020 , Detective Trapp received a report from DNA Solutions. The report

st ated DNA Solutions had been able to generate a SNP profile and had also been able to produce a SNP profile that was uploadable to [ redacted ] . [ Redacted ] is a free genealogy
websit e that allows you to upload digitized genetic data

. ”

“ On January 29, 2021, FBI Agent s Steve Wrathall and Nina Vicencia contacted Detective Trapp to inform her that through genealogy, an investigative lead

was generated that identified And r e William Lepere (DOB: 4/ 16 /1957) as a person of
interest in this case

. Detec ti ve Trapp conducted numerous computer checks and learned Lepere currently had a l isted home address in Alamogordo, New Mexico. ”

Marrujo note s Lepere had been arrested in 1973 , and his address at that
time was three apartment complexes away from where the 1980 murde r had occurred. Marrujo also notes that Lepere ’ s mother had died in a car accident in 1982 , and her address was in the same apartment complex where the victim was killed

. The affidavit7

further avers that although Lepere had be en previously arrested a few times ( including an arrest for attempted murder ) , Lepere ’ s DNA had never been entered into the FBI ’ s Combined DNA Index System (CODIS).

Marrujo conclude s : “ Based on the above information and details, Detective Trapp believes Andre Lepere i s a suspect in the murder [of the victim ] and a DNA sample needs to be collected from [Lepere] t o compare his DNA to the profile from the
victim ’ s vagi nal swabs. ”

Here, t he genealogical investigation by the Orange County Crime Lab and
the FBI established a possible DNA connection between Lepere and the 1980 murder.
Further , there was corroborati ng evidence that Lepere may have been near the victim ’ s apartment in Anaheim, California , at about the time of the 1980 murder

. In short, w e find
the re was “ a fair probability

. . . that a search ” of Lepere ’ s outside trash can “ would

uncover ” circumstantial DNA evidence linking Lepere to the commission of the 1980
Anaheim murder. 1 ( See Kraft , supra , 23 Cal.4th at p. 1040 .) Thus, we hold that the New
Mexico magistrate had a reasonable basis for issuing the search warrant, and the trial

court properly den ied Lepere ’ s pretrial motion to suppress the DNA evidence.

Lepere admits: “ The affidavit thus contains facts to show that (1) a DNA profile was developed from the semen found at the crime scene, (2) appellant or his family members lived in the same area as the decedent at the time her body was found, and (3) appellant ’ s DNA would likely be found in the trash at his current re gistered
address. ” However, Lepere argues , “ the affidavit does not state any facts to show how appellant was identified from the SNP profile as a suspect. ” We disagree.

Agent M a rrujo averred in his affidavit that the FBI had utilized a technique
known as “ Investigative Genealogy

. ” Marrujo specifically noted how the SNP or

1 There apparently was no dispute that the trash can was within the “ curtilage ” of Lepere ’ s home, and thus was part of the home itself for Fourth Amendment purposes. (See Florida v. Jardines (2012) 569 U.S. 1, 6.)8

“ digitized genetic data ” developed from the 1980 murder victim ’ s vaginal swab had been uploaded to a genealogy website, which resulted in the two named FBI agents id entifying Lepere as a person of interest. While a more fact

- intensive description of “ Investigative Genealogy ” may have been helpful, the level of detail in the affidavit was adequate. (See People v. Varghese (2008) 162 Cal.App.4th 1084, 1103 [ “ Because t hey are often written by nonlawyers in the midst of an investigation, technical requirements for elaborate specificity have no place in the review of search warrant affidavits ” ].)

Lepere further argues : “ At most, the affidavit merely recited the investig ating officer ’ s opinions and conclusions that appellant was identified as a possible suspect , which are insufficient to support a finding of probable cause. ” Again, we disagree. In addition to the DNA evidence and other corroborating facts in the affidavit, Marrujo stated, “ Detective Trapp believes Andre Lepere is a suspect in the
murder

. . . , and a DNA sample needs to be collected from [Lepere] to compare his DNA
to the DNA profile from the victim ’ s vaginal s wabs. ” We find that the opinion simply
reinforced the v eracity of the affidavit. (See People v. Tuadles (1992) 7 Cal.App.4th 1777, 1784 [o pinions of officers with training and experience are valuable in interpreting
the circumstances and conduct describe d by an affidavit ].)

In any event, even if we were to find the affidavit was not s ufficiently
de tailed , under the good faith exception to the exclusionary rule, we would not find it necessary to exclude the evidence

. There was no suggestion at the hearing on the motion
that A gent Marrujo had misrepresented the facts

. Indeed, a n assistant district attorney signed off as to the “ legal sufficiency ” of the affidavit. Th us , we would find the officers executing the search objectivel y relied on the validity of the search warrant in good faith

. (See United States v. Leon (1984) 468 U.S. 897, 922 [ when an officer acts in good faith
reliance upon a search warrant , the exclusion of evidence does not serve the purpose of the exclusionary rule: deterrence of police misconduct ].)9

B. The Prosecutor ’ s Closing Argument

Lepere claims the prosecutor committed prejudicial misconduct during the closing argument. We disagree.

We evaluate claims of prosecuto rial misconduct ( or error ) under well

established standards. “ A prosecutor ’ s conduct violates the Fourteenth Amendment to
the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct b y a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. ” ( People v. Morales (2001) 25 Cal.4th 34, 44.)

“‘ A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. ’” ( P eople v. Hill (1998) 17 Cal.4th 800, 819

- 820.) However, “‘ the term prosecutorial “ misconduct ” is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is pro secutorial error. ’” ( People v.
Centeno (2014) 60 Cal.4th 659, 666

- 667.)

In reviewing a prosecutor ’ s comments to the jury, “ we must view the statements in the context of the argument as a whole. ” ( People v. Cole (2004) 33 Cal.4th 1158, 1203.) Generally, a prosecutor has “‘ wide latitude to discuss and draw inferences from the evidence at trial, ’ and whether ‘ the inferences the prosecutor draws are reasonable is for the jury to decide. ’” ( I bi d .) The relevant question is “‘ whether there is

a reasonable likelihood that the jury construed or applied any of the complained

- of

remarks in an objectionable fashion. ’” ( Id . at pp. 1202

- 1203.)

Generally, to raise an alleged error on appeal, the issue must first be raised in the trial court. ( In re S .B. (2004) 32 Cal.4th 1287, 1293 & fn. 2.) A defendant forfeits10

a prosecutorial misconduct claim on appeal unless the defendant objected to the alleged misconduct when it occurred and further asked the court to admonish the jury. (See People v. Ervine ( 2009) 47 Cal.4th 745, 806.)

Here, t he prosecutor began the closing argument , in part, by discussing the
familiar burden of proof in all criminal cases :

“ Proof beyond a reasonable doubt means proof that leaves you with an abiding conviction the charge is true. Now, it ’ s not the same as proof beyond all conceivable doubt, because as the instruction itself explains, everything in life is subject to some possible imaginary doubt.

“ Now, is it a high burden of proof ? Absolutely. As well it should be. But

m ake no mistake, it ’ s a burden of proof I welcome, it ’ s a burden of proof that ’ s appropriate. It ’ s a burden of proof that, based on the state of the evidence, I have far
exceeded. [¶] When you consider the totality of the evidence, not least of which is his testimony, he is the epitome of guilty beyond a reasonable doubt. ”

In this appeal, Lepere object s only to the following italicized portion s of the prosecutor ’ s closing argument:

“ There are two interpretations of the evidence that have been presented to you. One, that he ’ s the perpetrator, and one that he ’ s not

.

“ Of course he ’ s the perpetrator. His story is ridiculous. And as ridiculous as it is, I would be remiss if I failed to point out I don ’ t even got to prove it ’ s absurd or
ridiculous. I have to prove that it ’ s unreasonable. And that ’ s because, as you ’ ll hear in the instructions, you are duty bound to reject any interpretation of the evidence that is
unreasonable

.

“ Sometimes a fact is so obviously damning, that because it ’ s obvious, we begin to take it for granted. There ’ s a tendency to then lose sight of just how significant
it is. Don ’ t make that mistake.11 “ This woman was 79

- and

- a

- half years old. She was born in the year 1900.
She swore off men since before the G reat De pression. She wore house dresses, at least
since she retired

. . . . People who were not related to her at the compl ex called her grandma. She propped her door open with a soup can.

“ And beyond that, she was a regular person. This isn ’ t a movie star, celebrity, supermodel with perfect genes that looks 20, 30 years younger. This woman looked, and more importantly act ed, every bit her age.

“ It ’ s not just that when she was found dead, there was semen inside of her.
It ’ s that all these years later, the DNA testing confirmed that the semen

-- it didn ’ t belong[] to anyone that was even remotely close to her generation, l et alone age. Ye t that defendant expects you to believe this woman would have sex with him? It ’ s silly. Of
course she wouldn ’ t do that.

“ He expects you to believe that she would have sex with someone who was 57 years younger than her, ten years younger than her granddaughter. And to do it the very first time he ever stepped foot in her apartment. Of course not

. ” (Italics added.)

Lepere contends his trial testimony was direct evidence and not subject to
the jury instruction to reject unreasonable inferences applicable to circumstantial
evidence

. (See CALCRIM No. 224 [ “ when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable ” ].) Further, Lepere contends “ the prosecutor ’ s argument misstated the burden of proof by suggesting

t hat the burden was met as long as the prosecution proved appellant ’ s testimony was
unreasonable. ” (See CALCRIM No. 2 20 [ “ In deciding whether the People have proved their case beyond a reasonable doubt , you must impartially compare and consider all the evidence that was received throughout the entire trial ” ].)

Lepere did not object during the prosecutor ’ s closing argument, so th is
issue has been forfeited for purposes of appeal. (See People v. Ervine , supra , 47 Cal.4th12

at p. 806.) Lepere argues in the alternative that h is trial counsel provided ineffective assistance by failing to object during the closing argument

. We disagree.

To establish an ineffective assistance of counsel claim, a defendant must
show: 1) counsel ’ s performance fell below an objective standard of reasonableness under prevailing professional norms; and 2) this resul ted in prejudice to the defendant. ( Strickland v. Washington (1984) 466 U.S. 668, 687

- 688, 691

- 692.) “ A court need not
first determine whether counsel ’ s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that
course should be followed. ” ( Id . at p. 67 7 .)

The standard for analyzing prejudice in an ineffective assistance of counsel

c laim mirrors the state standard for prejudicial error. ( Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050

- 1051.) That is, “ a ‘ miscarriage of justice ’ should be declared only when the court, ‘ after an examination of the entire cause, including the evidence, ’ is of the ‘ opinion ’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. ” ( People v.
Watson (1956) 46 Cal.2d 818, 836.) If the challenged statements of the pro secutor during closing argument do not constitute prejudicial error , then defendant has not established
ineffective assistance of counsel based on a failure to object to those challenged portions of the prosecutor ’ s argument. ( See Strickland , supra , 466 U.S. at p. 697.)

Here, even if we assum e that the prosecutor misstated the jury instruction

as to circumstantial evidence (CALCRIM No. 224) and/or mis stated the standard of proof (CALCRIM No. 220) , we do not find it reasonably probable that an objecti on and /or a curative instruction would have resulted in an outcome more favorable to Lepere.

T he judge instructed the jur ors they were required to follow the law as explained by the court: “ You must follow the law as I explain it to you, even if you13

disa gree with it. If you believe that the attorneys ’ comments on the law conflict with my instructions, you must follow my instructions. ” (CALCRIM No. 2 0 0.) The court correctly instructed the jur ors on the distinction between direct and circumstantial
evidence : “ Both direct and circumstantial evidence are acceptable types of evidence

. . . and neither is necessarily more reliable than the other. ” (CALCRIM No. 223

. ) The court
also correctly instructed the jur ors on the standard of proof: “ Unless the evidence proves
the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal, and you must find him not guilty. ” (CALCRIM No. 220.)

Given the prosecutor ’ s accurate statement of the burden of proof at the beginning of the closing argument , and the court ’ s correct jury instructions, we find it is not reasonably probable t he jur ors misapplied the instructions. That is, w e do not presume the jur ors blindly followed the prosecutor ’ s alleged misstatements of the law , which were purportedly inconsistent with the court ’ s instructions. ( See People v. Mills (2012) 55 Cal.4th 663, 680.) In deed, we must presume the jur y understood and followed
the court ’ s instruct ions

. ( See People v. Ortiz (2012) 208 Cal.App.4th 1354, 1370.)

Moreover , the undisputed DNA evidence and Lepere ’ s testimony provided overwhelming evidence of his guilt

. A s the prosecutor appropriately argued , Lepere ’ s testimony was “ ridiculous. ” (See People v. Schultz (2020) 10 Cal.5th 623, 656

- 657 [ assuming trial court erred, error was not prejudicial where there was DNA evidence linking defendant with sperm recovered during murder/rape victim ’ s autopsy] ; see also People v. Wright ( 1998) 62 Cal.App.4th 31, 44 [ counsel was not ineffective in failing to
call witness where there was overwhelming DNA evidence of defendant ’ s guilt] .)14 III
DISPOSITION The judgment is affirmed.

MOORE, ACTING P. J.

WE CONCUR:

SANCHEZ, J.

DELANEY, J.