Filed 5/15/13 P. v. Hernandez CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

v. 

RENE HERNANDEZ, 

Defendant and Appellant. 

 H037436 

 (Santa Cruz County 

 Super. Ct. No. WF00983) 

 ORDER MODIFYING OPINION 

 [NO CHANGE IN JUDGMENT] 

BY THE COURT: 

 It is ordered that the opinion filed herein on May 9, 2013, be modified in the 

following particulars: 

 On page 1, the heading “Santa Clara County” is deleted and replaced with “Santa 

Cruz County.” 

 This modification does not affect a change in the judgment. 

 _________________________________ 

 BAMATTRE-MANOUKIAN, J. 

 _________________________________ 

 ELIA, ACTING P.J. 

 _________________________________ 

 MÁRQUEZ, J. 
2

Filed 5/9/13 (unmodified version) 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SIXTH APPELLATE DISTRICT 

THE PEOPLE, 

Plaintiff and Respondent, 

v. 

RENE HERNANDEZ, 

Defendant and Appellant. 

 H037436 

 (Santa Clara County 

 Super. Ct. No. WF00983) 

 

 Defendant Rene Hernandez appeals after conviction, by jury trial, of rape (Pen. 

Code, § 261, subd. (a)(2)),1

 penetration with a foreign object (§ 289, subd. (a)(1)), and 

assault by means of force likely to produce great bodily injury (former § 245, 

subd. (a)(1)). The jury found true allegations that defendant kidnapped the victim before 

committing the rape and penetration. (§ 667.61, subds. (b), (e)(1).) Defendant was 

sentenced to consecutive terms of 15 years to life for the rape and penetration, with the 

term for the assault stayed pursuant to section 654. 

 On appeal, defendant contends: (1) there was insufficient evidence to support the 

kidnapping allegations; (2) the trial court failed to instruct the jury that in determining 

whether defendant kidnapped the victim, it should consider whether the forcible 

 1

 All further statutory references are to the Penal Code unless otherwise indicated. 
3

movement was incidental to the commission of the associated offenses; (3) the trial court 

erred by allowing the prosecution to admit 10 booking photos of defendant to show his 

changed appearance and consciousness of guilt; (4) the trial court failed to instruct the 

jury to view defendant’s oral admissions with caution and failed to give a corpus delicti 

instruction; (5) the trial court coerced a verdict on the kidnapping allegations by directing 

the jury to continue deliberating on those allegations after the jury reported a deadlock on 

count 1; (6) the cumulative effect of the errors denied defendant due process and a fair 

trial; (7) section 654 barred the trial court from imposing One Strike law sentences for 

both the rape and penetration with a foreign object based on the same act of kidnapping; 

and (8) this court should order a suppression hearing or find that trial counsel was 

ineffective for failing to bring a suppression motion, because defendant’s DNA was taken 

after arrest on an unrelated felony charge for which he was not convicted, in violation of 

the Fourth Amendment. 

 As we shall explain, with respect to the kidnapping allegations, we agree that the 

trial court should have instructed the jury to consider whether the forcible movement was 

incidental to the commission of the associated offenses, and that the error was prejudicial. 

We will reverse the judgment and remand for possible retrial of the kidnapping 

allegations under section 667.61, subdivisions (b) and (e)(1). We find no prejudicial 

error as to defendant’s convictions of rape, penetration with a foreign object, or assault by 

means of force likely to produce great bodily injury. We also decline to order a 

suppression hearing and find that defendant did not receive ineffective assistance of 

counsel. 
4

BACKGROUND 

A. Testimony Regarding the Incident 

 On February 11, 2009, Jane Doe2

 took care of an elderly couple who lived in 

Watsonville. After work, she remained at the house and began drinking alcohol. She had 

more than two drinks. Sometime between 8:30 p.m. and 9:30 p.m., Doe decided to walk 

to her ex-boyfriend’s home on Dogwood Drive. As she walked, Doe felt safe, 

wondering, “Who would touch a 56-year-old woman?” 

 Doe’s route took her down the sidewalk along East Lake Avenue. About 10 to 

15 minutes into her walk, Doe saw two men approaching her. One of the men was 

young, tall, and thin, and he had a pit bull on a leash. The second man – defendant – was 

older, shorter, and heavier, with “real short” hair. 

 Defendant told the other man to leave. He then pulled Doe by the hair and arm, 

moving her about four or five feet off the sidewalk, away from the street. Defendant 

pushed Doe’s head into a cement wall, and she ended up on the ground next to some 

bushes. Defendant told Doe to “shut up” and said he was going to “fuck [her] to death.” 

Doe realized her pants were down around her ankles. Defendant penetrated her vagina 

with his finger and then with his penis. After saying “I’m done, bitch,” he left. 

 Doe got up and pulled up her pants. She had leaves and other debris all over her. 

Her purse was missing. She ran down East Lake Avenue, trying to get help. Several cars 

passed without stopping, until Juan Roman noticed her waving and offered his help. 

 Doe was upset, smelled of alcohol, and had dirty clothing, but was speaking 

clearly. Doe said she needed a ride and that she had been raped. Roman called 911 then 

took Doe to meet two deputies. 

 2

 Although the information alleged that the offenses were committed against “Jane 

Doe,” the jury learned the victim’s true name during trial. We continue to refer to her as 

Jane Doe pursuant to our policy of nondisclosure of the names of living victims of sex 

crimes. (See Cal. Style Manual (4th ed. 2000) § 5:9.) 
5

B. Investigation 

 Watsonville Police Detective Morgan Chappell spoke to Doe about the incident. 

Doe was coherent and alert during the interview. She complained of head pain and had 

“weeds and stuff” in her hair. Doe said she had consumed two mixed drinks. She said 

her purse had about $20 in it as well as two prescription bottles. 

 Detective Chappell then took Doe to the hospital, where she spoke to a Sexual 

Assault Response Team (SART) nurse. Doe gave consistent versions of the incident to 

the detective and the nurse. During the SART exam, the nurse found debris (bark, twigs, 

crushed leaves, and moss) in Doe’s underwear and pants. Debris was also stuck to Doe’s 

back and inside the entrance to her vagina. There was a bruise on Doe’s right arm and 

abrasions on both of her knees. 

 The SART nurse found a laceration at the 6:00 o’clock position in Doe’s vagina. 

This injury is commonly found when there has been blunt force trauma, and it is 

consistent with the use of “more force” than what would be used for consensual sex. Doe 

also had a puncture wound in her anal opening. Live sperm was found on a vaginal 

swab. 

 At the time of the SART exam, Doe did not seem intoxicated. However, when her 

blood was drawn at 2:30 a.m., it had a blood alcohol level of 0.19 percent. According to 

toxicologist Judy Stewart, the alcohol would have metabolized at a rate of 0.015 percent 

per hour. 

 Detective Chappell participated in a search for the crime scene, but neither he nor 

the other officers found anything of evidentiary value. It had rained earlier that day and 

had begun raining again. Doe had not been able to pinpoint the exact location of the 

rape; she had only been able to identify the particular side of the road and the general 

location on East Lake Avenue between two cross streets. 

 Photographs taken in the general location of the incident were introduced at trial. 

They show a street on one side of the sidewalk and an embankment that runs along the 
6

other side of the sidewalk. A concrete wall sits at the top of the embankment. As shown 

by the photograph and as described by witnesses, various forms of vegetation (ice plant, 

bushes, and young trees) grow along the embankment and near the concrete wall. 

 Detective Chappell testified that on a dark and rainy night, a passer-by would not 

be able to see the shrubs or anything behind them very well. It would be “much easier” 

to see someone on the sidewalk than someone in the area between the shrubs and the 

wall. 

 Watsonville Police Detective Christopher Greene worked with Doe’s description 

of her attacker to produce a composite drawing following the rape. The drawing was 

circulated in local newspapers. It generated a few leads that “went nowhere.” 

 On March 11, 2009, Detective Greene canvassed the neighborhoods along East 

Lake Avenue. He went to defendant’s residence because another officer had reported 

seeing a pit bull in that neighborhood. He inquired at the residence but did not speak to 

defendant. An adult female at the residence said the dog belonged to defendant. 

Detective Greene later showed Doe a photograph of the pit bull, but she was unable to 

identify it as the one she had seen on the night of the incident. 

 DNA from the sperm found during the SART exam was entered into the CODIS 

database in March 2009. On January 5, 2010, a “cold hit” occurred in the CODIS 

database, matching the DNA evidence to defendant, whose DNA had been taken 

following an arrest on an unrelated matter. 

 Following the CODIS hit, defendant was arrested for the current offenses on 

January 11, 2010. A photograph of defendant, taken in 2008, was included in a 

photographic array that was shown to Doe. Doe could not positively identify anyone 

from the array, although she spent “a long time” looking at defendant’s photograph and 

commented that the photograph “look[ed] like him.” 
7

C. Victim Impeachment – Prior Domestic Violence Incident 

 On June 18, 2005, Santa Cruz County Sheriff Detective Joe Mata was dispatched 

to the Dogwood Drive residence to investigate a possible stabbing. Doe was at the 

residence and appeared to be intoxicated. She claimed that she had been stabbed in the 

neck, chest, and face. Medics attended to her but did not believe she had been stabbed, 

although she did have bruises on her arms and possibly on a knee. Doe was arrested for 

domestic violence, but Detective Mata did not believe she was ever prosecuted. 

 Doe acknowledged having problems with alcohol and that the police had 

responded to a 911 call at her ex-boyfriend’s home. Doe denied telling the police that her 

ex-boyfriend had stabbed her, but she admitted that “things were exaggerated.” 

D. Charges, Trial, and Sentencing 

 On July 1, 2010, the District Attorney filed an information alleging that defendant 

committed kidnapping for purposes of rape (count 1; § 209, subd. (b)(1)), forcible rape 

(count 2; § 261, subd. (a)(2)), penetration with a foreign object (count 3; § 289, 

subd. (a)(1)), second degree robbery (count 4; § 211), assault with intent to commit a sex 

offense (count 5; § 220, subd. (a)), false imprisonment by violence (count 6; § 236), and 

assault by means of force likely to produce great bodily injury (count 7; former § 245, 

subd. (a)(1)). 

 The information alleged two One Strike law circumstances in connection with the 

charges of rape and penetration with a foreign object. First, it alleged that defendant 

kidnapped the victim “and the movement of the victim substantially increased the risk of 

harm to the victim over and above that level of risk necessarily inherent in the underlying 

offense” (i.e., aggravated kidnapping), which would make the crimes punishable by a 

term of 25 years to life. (§ 667.61, subds. (a), (d)(2).) Alternatively, the information 

alleged that defendant “kidnapped the victim of the present offense in violation of 

Section 207 and or 209 and or 209.5” (i.e., simple kidnapping), which would make the 

crimes punishable by a term of 15 years to life. (§ 667.61, subds. (b), (e)(1).) 
8

 At trial, defendant did not dispute that he had sexual intercourse with Doe, as that 

fact was established by the DNA evidence. He argued that Doe was not credible in 

testifying that the intercourse was non-consensual. He also argued there was insufficient 

evidence to support guilty verdicts on the other counts and true findings on the special 

allegations. 

 The jury convicted defendant of three counts: forcible rape (count 2; § 261, 

subd. (a)(2)), penetration with a foreign object (count 3; § 289, subd. (a)(1)), and assault 

by means of force likely to produce great bodily injury (count 7; former § 245, 

subd. (a)(1)). It found defendant not guilty of robbery (count 4; § 211) and not guilty of 

the lesser-included offense of petty theft (§ 484). The jury was unable to reach a verdict 

on the charge of kidnapping for purposes of rape (count 1; § 209, subd. (b)(1)). 

 Because of the guilty verdicts on counts 2 and 3, no verdict was returned for 

count 5 (assault with intent to commit a sex offense; § 220, subd. (a)), which was charged 

only as a lesser-included offense of counts 2 and 3. Likewise, because the jury was 

unable to reach a verdict on count 1, the trial court did not record the jury’s verdict for 

count 6 (false imprisonment by violence; § 236), which was charged only as a lesserincluded offense of count 1. 

 As to counts 2 and 3 (rape and penetration with a foreign object), the jury found 

the aggravated kidnapping allegations not true (§ 667.61, subds. (a), (d)(2)), but it found 

the simple kidnapping allegations true (§ 667.61, subds. (b), (e)(1)). 

 At the sentencing hearing on August 18, 2011, the trial court imposed consecutive 

terms of 15 years to life for the rape and penetration (counts 2 and 3). It imposed the 

four-year upper term for the assault (count 7), but stayed that count pursuant to section 

654. It imposed a $10,000 restitution fine (§ 1202.4, subd. (b)), imposed but stayed a 

$10,000 parole revocation fine (§ 1202.45), imposed $120 in court security fees 

(§ 1465.8, subd. (a)(1)), and imposed $90 in criminal conviction assessments (Gov. Code, 
9

§ 70373). On the District Attorney’s motion, the trial court dismissed counts 1, 5, and 6 

and the aggravated kidnapping allegations. 

DISCUSSION 

A. Sufficiency of the Evidence of Kidnapping 

 Defendant contends there was insufficient evidence to support the allegations that 

defendant committed the rape and penetration “after kidnap[p]ing the victim in violation 

of Penal Code section 207.” (See § 667.61, subd. (e)(1).) 

1. Standard of Review 

 In reviewing a claim of insufficiency of the evidence on appeal, “ ‘the relevant 

question is whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting 

Jackson v. Virginia (1979) 443 U.S. 307, 318-319, original italics.) “An appellate court 

must view the evidence in the light most favorable to respondent and presume in support 

of the judgment the existence of every fact the trier could reasonably deduce from the 

evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) 

2. Analysis 

 In urging this court to strike the kidnapping allegations, defendant contends that 

there was insufficient evidence of asportation – that is, movement of the victim that is 

“ ‘substantial in character.’ ” (People v. Martinez (1999) 20 Cal.4th 225, 235 

(Martinez).) 

 In Martinez, the California Supreme Court set forth the asportation standard for 

simple kidnapping in violation of section 207, subdivision (a). Reaffirming that the 

movement must be “substantial in character” (Martinez, supra, 20 Cal.4th at p. 237), 

the court overruled precedent that had “made the asportation standard exclusively 

dependent on the distance involved” (id. at p. 233). The Martinez court emphasized that 
10

“[s]ection 207(a) proscribes kidnapping or forcible movement, not forcible movement for 

a specified number of feet or yards.” (Id. at p. 236.) 

 The Martinez court held that “factors other than actual distance are relevant to 

determining asportation . . . in all cases involving simple kidnapping.” (Martinez, supra,

20 Cal.4th at p. 235.) Thus, “the jury should consider the totality of the circumstances.” 

(Id. at p. 237.) Relevant circumstances might include actual distance as well as “such 

factors as whether that movement increased the risk of harm above that which existed 

prior to the asportation, decreased the likelihood of detection, and increased both the 

danger inherent in a victim’s foreseeable attempts to escape and the attacker’s enhanced 

opportunity to commit additional crimes.” (Ibid., fn. omitted.) “In addition, in a case 

involving an associated crime, the jury should be instructed to consider whether the 

distance a victim was moved was incidental to the commission of that crime in 

determining the movement’s substantiality.” (Ibid.) 

 Although the Martinez court was clear that actual distance was not determinative 

of whether a movement was “substantial in character,” it also “emphasize[d] that 

contextual factors, whether singly or in combination, will not suffice to establish 

asportation if the movement is only a very short distance.” (Martinez, supra, 20 Cal.4th 

at p. 237.) 

 Defendant asserts that because Martinez stressed that a movement for “only a very 

short distance” cannot establish asportation (Martinez, supra, 20 Cal.4th at p. 237), “there 

remains some minimum actual distance requirement.” He argues that the movement of 

Doe from the sidewalk to the area near the wall and shrubs – approximately four or five 

feet, according to Doe’s estimate – was “only a very short distance” and thus insufficient 

to establish asportation despite any contextual factors. (Ibid.) Defendant also asserts that 

even with the contextual factors, the movement here was not substantial. 

 We do not read Martinez as establishing that a movement of only four or five feet 

is so “very short” that it could never be the basis for a simple kidnapping conviction. In 
11

Martinez, the California Supreme Court made it clear that there is no specific actual 

distance minimum for simple kidnapping. (Martinez, supra, 20 Cal.4th at p. 236; see 

People v. Corcoran (2006) 143 Cal.App.4th 272, 280 [“measured distance is not alone 

determinative”].) Defendant contends that the specific distance of five feet is, as a matter 

of law, never “substantial in character.” (Martinez, supra, 20 Cal.4th at p. 237.) In light 

of Martinez’s overruling of the line of cases setting a minimum distance requirement for 

kidnapping, we decline to so hold. 

 Prior published cases have held that movements as short as nine feet are not so 

“very short” as to preclude a jury finding that the distance was insubstantial. (Martinez, 

supra, 20 Cal.4th at p. 237.) For instance, in People v. Shadden (2001) 93 Cal.App.4th 

164 (Shadden), the defendant dragged the victim nine feet from the front counter of a 

video store to a room in the back of the store. The Shadden court upheld the defendant’s 

simple kidnapping conviction, noting that “[w]here movement changes the victim’s 

environment, it does not have to be great in distance to be substantial.” (Id. at p. 169.) 

The Shadden court explained that because the victim was moved “from an open area to a 

closed room,” which changed the victim’s environment, “the jury could reasonably infer 

that the distance was substantial.” (Ibid.) 

 Here, the movement of Doe from the sidewalk to the area near the wall and 

shrubs, while brief, was not so “very short” as to be insubstantial as a matter of law. 

(Martinez, supra, 20 Cal.4th at p. 237.) A reasonable jury could have found that taking 

Doe from the sidewalk to the area next to the concrete wall significantly altered her 

environment. (See Shadden, supra, 93 Cal.App.4th at p. 169.) The evidence at trial 

established that on the sidewalk, even though it was dark out, Doe would have been 

visible to cars passing by because the headlights would have illuminated the area. In 

contrast, four or five feet away, up the embankment and obscured by the shrubs, Doe 

would not have been nearly as visible to passers-by. This change in environment made it 

more likely that defendant would avoid detection, reduced Doe’s opportunity to escape, 
12

and gave defendant a greater opportunity to commit additional crimes. (See ibid. [“where 

a defendant moves a victim from a public area to a place out of public view, the risk of 

harm is increased even if the distance is short”].) 

 A reasonable juror could also have found that “the movement of the victim was for 

a distance beyond that which was incidental to the commission of an associated crime.” 

(People v. Bell (2009) 179 Cal.App.4th 428, 440 (Bell); see Martinez, supra, 20 Cal.4th 

at p. 237.) The record supports a finding that the movement of Doe from the sidewalk to 

the area near the concrete wall and shrubs was not incidental to the commission of any of 

the associated crimes – i.e., rape, penetration, or assault. Defendant could have 

committed the assault or sexual assault on Doe while she was on the sidewalk or right 

next to the sidewalk, instead of moving her to the area with bushes and the wall. (See 

Shadden, supra, 93 Cal.App.4th at p. 169 [movement is not necessary to the commission 

of a rape]; People v. Diaz (2000) 78 Cal.App.4th 243, 248-249 (Diaz) [movement of 

victim from sidewalk to immediately adjacent grassy area was incidental to rape, but 

further movement to dark area was not].) 

 In sum, based on the totality of the circumstances, a jury could reasonably find 

that defendant’s movement of Doe was “substantial in character.” (Martinez, supra, 20 

Cal.4th at p. 237.) Substantial evidence in the record supports the jury’s findings under 

section 667.61, subdivisions (b) and (e)(1). 

B. Instructional Error 

 Defendant contends the trial court erred by failing to instruct the jury that in order 

to find the kidnapping allegations true, it should consider whether the forcible movement 

of Doe was more than “merely incidental” to the commission of an associated offense. 

(CALCRIM No. 1215; see Martinez, supra, 20 Cal.4th at p. 237.) 

1. Proceedings Below 

 The trial court instructed the jury pursuant to CALCRIM No. 3179 that if it found 

defendant guilty of the rape and penetration with a foreign object, it had to “decide 
13

whether, for each crime, the People have proved the additional allegation that the 

defendant kidnapped [Jane Doe].” The trial court explained that “[t]o decide whether the 

defendant kidnapped [Jane Doe],” the jury should “refer to the separate instructions that I 

will give you on kidnapping.” 

 The trial court then instructed the jury pursuant to CALCRIM No. 1215 that to 

find defendant committed kidnapping, it had to find that “1. The defendant took, held, or 

detained another person by using force or by instilling reasonable fear; [¶] 2. Using that 

force or fear, the defendant moved the other person or made the other person move a 

substantial distance; [¶] AND [¶] 3. The other person did not consent to the 

movement.” 

 The trial court gave the following definition of the term “substantial distance”: 

“Substantial distance means more than a slight or trivial distance. In deciding whether 

the distance was substantial, you must consider all the circumstances relating to the 

movement. Thus, in addition to considering the actual distance moved, you may also 

consider other factors such as whether the movement increased the risk of harm, 

increased the danger of a foreseeable escape attempt, gave the attacker a greater 

opportunity to commit additional crimes, or decreased the likelihood of detection.” 

(CALCRIM No. 1215.) 

 The trial court did not include an optional (bracketed) portion of CALCRIM 

No. 1215, which would have instructed the jury that in determining whether the victim 

was moved a substantial distance, it could also consider “whether the distance the other 

person was moved was beyond that merely incidental to the commission of” an 

“associated crime.” 

2. Analysis 

 The California Supreme Court has made it clear that “in a case involving an 

associated crime, the jury should be instructed to consider whether the distance a victim 

was moved was incidental to the commission of that crime in determining the 
14

movement’s substantiality.” (Martinez, supra, 20 Cal.4th at p. 237.) Citing Martinez and 

Bell, supra, 179 Cal.App.4th 428, the bench notes to CALCRIM No. 1215 state, “The 

court must give the bracketed language on movement incidental to an associated crime 

when it is supported by the evidence.” 

 The Attorney General states that “this issue is close” and acknowledges that “the 

trial court should have given the jury the bracketed language regarding incidental 

movement in the simple kidnapping ‘one strike’ allegation.” However, the Attorney 

General cites People v. Dieguez (2001) 89 Cal.App.4th 266 at page 276 and asserts that 

there is no “ ‘reasonable likelihood’ that the jury misconstrued or misapplied the law.” 

The Attorney General notes that the “more than merely incidental” language was 

included in the jury instruction on the aggravated kidnapping allegation (CALCRIM No. 

3175), and that during closing arguments, defense counsel told the jury that, for the 

simple kidnapping allegation, it should consider whether the movement was “merely 

incidental to the commission of forcible rape.” 

 We do not believe that the instruction on the aggravated kidnapping allegation 

adequately informed the jury that, in considering whether the victim was moved a 

“substantial distance” for purposes of the simple kidnapping allegation, the jury could 

consider “whether the distance a victim was moved was incidental to the commission of 

that crime.” (Martinez, supra, 20 Cal.4th at p. 237.) The instruction on the aggravated 

kidnapping allegation (CALCRIM No. 3175) told the jury that “substantial distance” 

required that the movement was “more than merely incidental to the commission of 

forcible rape and/or forcible digital penetration.”3

 However, the instruction on the simple 

 3

 As given, CALCRIM No. 3175 provided: “If you find the defendant guilty of 

the crimes charged in Counts two and/or three, you must then decide whether, for each 

crime, the People have proved the additional allegation that the defendant kidnapped 

[Jane Doe], increasing the risk of harm to her. You must decide whether the People have 

proved this allegation for each crime and return a separate finding for each crime. 

 “To prove this allegation, the People must prove that: [¶] 1. The defendant took, 

held, or detained [Jane Doe] by the use of force or by instilling reasonable fear; [¶] 
15

kidnapping allegation omitted this requirement. Nothing in the instructions indicated that 

this omission was inadvertent, such that the jury should apply the same definition to both 

allegations. 

 We also disagree that defense counsel’s argument was sufficient to inform the jury 

that the “substantial distance” determination should include a consideration of “whether 

the distance . . . was beyond that merely incidental to the commission of” an “associated 

crime.” (CALCRIM No. 1215.) We cannot presume the jury applied the legal standards 

stated in defense counsel’s argument rather than those provided in the jury instructions, 

particularly since the trial court also instructed the jury to “follow the law” as explained 

by the court’s instructions, and that the instructions must be followed if the “attorney’s 

comments on the law conflict with” them. (CALCRIM No. 200.) 

 We also find it significant that the jury asked about the meaning of “merely 

incidental” and specified that the question was “[i]n regard to Count One,” the aggravated 

kidnapping charge.4

 This indicates that the jury was struggling with the term “merely 

incidental” and suggests that it did not necessarily understand that the standard applied to 

the simple kidnapping allegations. 

 

2. Using that force or fear, the defendant moved [Jane Doe] or made her move a 

substantial distance; [¶] 3. The movement of [Jane Doe] substantially increased the risk 

of harm to her beyond that necessarily present in the forcible rape and forcible digital 

penetration; [¶] AND [¶] 4. [Jane Doe] did not consent to the movement. 

 “Substantial distance means more than a slight or trivial distance. The movement 

must be more than merely incidental to the commission of forcible rape and/or forcible 

digital penetration. In deciding whether the distance was substantial and whether the 

movement substantially increased the risk of harm, you must consider all the 

circumstances relating to the movement. 

 “The People have the burden of proving each allegation beyond a reasonable 

doubt. If the People have not met this burden, you must find that the allegation has not 

been proved.” 

4

 The jury inquiry stated, “In regard to Count One, we request clarification of what 

‘merely incidental’ means? [¶] Are we allowed to be undecided on Count one and move 

to Count six?” 
16

 On this record, we cannot be confident that the jury understood that, with respect 

to the simple kidnapping allegations, the “substantial distance” determination should 

include a consideration of “whether the distance . . . was beyond that merely incidental to 

the commission of” an “associated crime.” (CALCRIM No. 1215; see Martinez, supra,

20 Cal.4th at p. 237.) 

 Having concluded there was instructional error, we must determine if reversal is 

required. As defendant points out, at least one published case has held that this error is 

subject to harmless-error review under the “harmless beyond a reasonable doubt” 

standard of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), because it 

violates the defendant’s “right to a correct jury instruction on all the elements of the 

offense of simple kidnapping.” (Bell, supra, 179 Cal.App.4th at p. 439.) The Attorney 

General does not advocate for a different harmless error standard, so we will assume that 

the Chapman standard applies. 

 “In determining whether instructional error was harmless, relevant inquiries are 

whether ‘the factual question posed by the omitted instruction necessarily was resolved 

adversely to the defendant under other, properly given instructions.’ [Citation.] A 

reviewing court considers ‘the specific language challenged, the instructions as a whole[,] 

the jury’s findings’ [citation], and counsel’s closing arguments to determine whether the 

instructional error ‘would have misled a reasonable jury. . . .’ [Citation.]” (Bell, supra,

179 Cal.App.4th at p. 439.) 

 As noted above, we cannot say with confidence that “ ‘the factual question posed 

by the omitted instruction necessarily was resolved adversely to the defendant under 

other, properly given instructions.’ ” (Bell, supra, 179 Cal.App.4th at p. 439.) Although 

the instruction on the aggravated kidnapping allegation (CALCRIM No. 3175) required 

the jury to find that the movement was “more than merely incidental to the commission 

of forcible rape and/or forcible digital penetration,” the instructions did not inform the 

jury that the same definition of “substantial distance” applied with respect to the simple 
17

kidnapping allegations. Moreover, the jury found the aggravated kidnapping allegation 

not true, suggesting that the jury found the distance was not “more than merely incidental 

to the commission of forcible rape and/or forcible digital penetration.” 

 The jury’s questions and verdicts do not necessarily reflect that it found the 

movement of Doe was more than merely incidental to the commission of an associated 

crime. The jury appeared to struggle with the concept of incidental movement when 

considering count 1, and it ultimately failed to reach a verdict as to that count. The jury’s 

deadlock on count 1 suggests that some of the jurors might not have believed that the 

movement of Doe was more than merely incidental to the commission of the rape. 

 Finally, as the Attorney General acknowledges, it was a “very close” question 

whether the movement here was more than merely incidental to any of the associated 

offenses. As discussed above, the jury could have found that the movement of Doe was 

more than merely incidental to the assault or sex offenses, since defendant could have 

committed those offenses while Doe was on the sidewalk or right next to the sidewalk. 

(See Shadden, supra, 93 Cal.App.4th at p. 169; Diaz, supra, 78 Cal.App.4th at pp. 248-

249.) However, the jury also could have reached the opposite conclusion – that the 

movement of Doe was merely incidental to the associated offenses, particularly the 

assault, which defendant committed by hitting Doe’s head against the wall, which was 

four or five feet from the sidewalk. (See Cotton v. Superior Court (1961) 56 Cal.2d 459, 

464 [dragging of victim 15 feet was incidental to assault]; People v. Hoard (2002) 103 

Cal.App.4th 599, 607 [movement was merely incidental where it “served only to 

facilitate the crime with no other apparent purpose”].) 

 On this record, we conclude that a properly instructed jury might have reached a 

different result and thus that the error was not harmless beyond a reasonable doubt. (See 

Chapman, supra, 386 U.S. at p. 24.) If the jury had been instructed that in determining 

whether the “distance was substantial” (CALCRIM No. 1215), it could consider whether 

the movement was incidental to the associated offenses, it might not have found the 
18

kidnapping allegations true. Because the trial court’s omission of the “merely incidental” 

language in CALCRIM No. 1215 was not harmless, we shall reverse the simple 

kidnapping allegations and remand for a retrial and/or resentencing.5

C. Booking Photographs 

 Defendant contends the trial court prejudicially erred by allowing the prosecution 

to introduce 10 booking photographs of him: six taken during the four years prior to the 

Doe incident and four taken afterwards. The photographs were introduced to support the 

prosecution’s theory that defendant purposely changed his appearance following the rape, 

showing a consciousness of guilt. 

 The photographs taken prior to the Doe incident show that defendant kept his hair 

very short – his head was almost shaved bald. The photographs taken after the Doe 

incident show that defendant’s hair became progressively and significantly longer. His 

facial hair changed as well. In the two years prior to the Doe incident, he kept a short 

goatee, but after the Doe incident it looked quite different – at one point, he had only a 

moustache, and later, he grew the goatee out. 

1. Proceedings Below 

 Defendant moved in limine to exclude the booking photographs pursuant to 

Evidence Code section 352. The prosecution opposed the motion, arguing that the 

photographs demonstrated that defendant had deliberately changed his physical 

appearance following the rape. 

 At the hearing on the motion, defendant emphasized that his concern was with the 

jury’s discovery that he had a criminal history. He argued that the jury might conclude 

 5

 In light of our reversal of the simple kidnapping allegations, we need not reach 

defendant’s claim that the trial court erred by directing the jury to continue deliberating 

on those allegations after the jury reported a deadlock on count 1. Nor do we need to 

reach defendant’s claim that section 654 barred the trial court from increasing the 

sentences imposed for his convictions of rape and penetration with a foreign object based 

on the same act of kidnapping. 
19

his convictions were for more serious crimes than his actual criminal history reflected. 

He stressed that it would be prejudicial for the jury to learn that he had been arrested ten 

times. He suggested the prosecutor obtain photographs from the Department of Motor 

Vehicles or just use one photograph from before the rape and one from afterwards. 

 The prosecutor advocated for admission of all the photographs. He noted that 

defendant had been arrested six times between 2004 and 2008 with no change in his 

appearance, but that his appearance progressively changed in the four photographs after 

the rape. The prosecutor noted that after the rape, police had circulated a composite 

drawing and had even gone to defendant’s home, where defendant’s mother claimed that 

“nobody here looks like that.” 

 The trial court inquired whether there were any steps that could be taken to reduce 

the prejudice. The prosecutor indicated the photographs would be introduced with the 

booking information “excised” but acknowledged that the jury would still be aware “that 

those are booking photos.” The prosecutor suggested that the jury could be admonished. 

 The trial court found that the photographs were relevant, since they showed 

defendant’s appearance was consistent from 2004 to 2008, but changed in a “pretty 

significant” manner after the rape. The trial court also found that the photographs had 

potential for prejudice, but tentatively ruled that they were admissible. The trial court 

indicated that if defendant produced alternative photographs, they might be used instead 

of the booking photographs. 

 Defendant requested the jury be informed of the specific charges and outcomes of 

each arrest. The prosecutor suggested that instead, the parties stipulate that none of the 

arrests involved sex crimes and that all were for misdemeanors. Defendant agreed. 

 During opening statements, the prosecutor noted that defendant’s appearance “was 

amazingly stable for more than four years from 2004 to 2008,” but changed after a 

composite drawing circulated after the rape. 
20

 The prosecution introduced the photographs during Detective Greene’s testimony. 

The jury learned the exact dates of each photograph. The jury was read a stipulation 

stating that defendant “has no prior sex crimes and no felony convictions. Exhibits 4 and 

5 are photographs taken from 2004 to 2010 during police contacts involving allegations 

of misdemeanor crimes of a non-sexual nature.” 

 During trial, one of the alternate jurors sent a note to the trial court, asking if the 

booking photographs were from “seperate [sic] contacts with law enforcement?” In 

response, the trial court re-read the stipulation. 

2. Analysis 

 Defendant does not dispute that the booking photographs showed a change in his 

appearance following the incident, nor does he dispute that a change in appearance can 

show consciousness of guilt. (See People v. Randle (1992) 8 Cal.App.4th 1023, 1036.) 

Defendant contends that it was unnecessary for the prosecution to introduce so many 

photographs because the jury thereby learned that he had been arrested on 10 separate 

occasions. 

 Under Evidence Code section 352, “[t]he court in its discretion may exclude 

evidence if its probative value is substantially outweighed by the probability that its 

admission will (a) necessitate undue consumption of time or (b) create substantial danger 

of undue prejudice, of confusing the issues, or of misleading the jury.” In an Evidence 

Code section 352 analysis, “ ‘prejudicial’ is not synonymous with ‘damaging,’ but refers 

instead to evidence that ‘ “uniquely tends to evoke an emotional bias against defendant” ’ 

without regard to its relevance on material issues. [Citations.]” (People v. Kipp (2001) 

26 Cal.4th 1100, 1121.) 

 “[A]n appellate court applies the abuse of discretion standard of review to any 

ruling by a trial court on the admissibility of evidence. [Citations.]” (People v. Waidla 

(2000) 22 Cal.4th 690, 717.) Thus, error in admitting evidence pursuant to Evidence 

Code section 352 may be found only “ ‘on a showing that the court exercised its 
21

discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest 

miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 

1060, 1124-1125.) 

 Generally, “evidence of mere arrests is inadmissible because it is more prejudicial 

than probative,” due to the danger that the jury will find that the defendant “has an 

untrustworthy and criminal character.” (People v. Lopez (2005) 129 Cal.App.4th 1508, 

1523.) Thus, booking photographs showing that a defendant has been arrested on 

previous occasions should not be admitted unless the photographs have strong probative 

value that is not “substantially outweighed” by their prejudicial effect. (Evid. Code, 

§ 352.) 

 In one case, the trial court erred by admitting multiple booking photographs of the 

defendant because they did not all have probative value on the issue for which they were 

introduced. In People v. Vindiola (1979) 96 Cal.App.3d 370 (Vindiola), overruled on 

other grounds in People v. Carter (2003) 30 Cal.4th 1166 at page 1197, the booking 

photographs were introduced on the issue of identification. A prosecution witness 

testified that the perpetrator wore a heavy moustache, while a defense witness testified 

that she had never seen the defendant with a moustache. The prosecutor presented 

several booking photographs showing the defendant with a moustache. Since the most 

recent booking photograph showed him with a moustache, there was no reason for the 

prosecution to introduce the other photographs, which carried “the inevitable implication 

that appellant suffered previous arrests and perhaps convictions.” (Vindiola, supra, at 

p. 384.) 

 In contrast to Vindiola, the trial court here did not abuse its discretion by finding 

that all 10 of the photographs had probative value concerning defendant’s consciousness 

of guilt, and that their prejudicial effect did not substantially outweigh that probative 

value. Since defendant’s identity was established by the DNA evidence, the probative 

value of the photographs was their reflection of defendant’s consistent appearance during 
22

the four years prior to the Doe incident and his progressive change in appearance 

following that incident. Introducing fewer photographs may not have had the same 

probative value. As the trial court found, the prejudicial effect of the photographs was 

minimized because the booking information was removed and because of the stipulation, 

which told the jury that defendant “has no prior sex crimes and no felony convictions” 

and that defendant’s prior police contacts were all for “allegations of misdemeanor 

crimes of a non-sexual nature.” The trial court reasonably determined that the stipulation 

would preclude the jury from speculating that defendant’s criminal history included any 

serious offenses and thus minimize any prejudicial impact of the photographs. (See 

People v. Little (2012) 206 Cal.App.4th 1364, 1378 [trial court appropriately dealt with 

potential prejudice of prior conviction evidence by giving parties “an opportunity to work 

out a stipulation amongst themselves”].) 

 Even assuming that the trial court should have admitted fewer booking 

photographs, we would find the error harmless, whether we apply the test of People v. 

Watson (1956) 46 Cal.2d 818 (Watson) or – because defendant claims the error 

implicates federal due process concerns – the more stringent standard of Chapman, 

supra, 386 U.S. 18. 

 First, there was little likelihood that the jury would use the booking photographs to 

find that defendant had a disposition to commit similar offenses to those charged. During 

closing argument, defendant conceded that he had sexual intercourse with Doe as 

established by the DNA evidence, so the only disputed issues at trial were whether Doe 

consented to the sexual acts, whether defendant assaulted and robbed her, and whether 

the movement met the legal standards for kidnapping. The stipulation ensured that the 

jury would not speculate that defendant had been arrested for other sex crimes or felony 

offenses like those charged and would not conclude that he was probably guilty of the 

current offenses based on his criminal history. (See People v. Beagle (1972) 6 Cal.3d 

441, 453 (Beagle) [“ ‘when the prior conviction is for the same or substantially similar 
23

conduct for which the accused is on trial,’ ” there is an “ ‘inevitable pressure on lay jurors 

to believe “if he did it before he probably did so this time” ’ ”].) 

 Second, the verdicts rendered by the jury show that it did not use the booking 

photographs in an improper manner – i.e., to find that defendant had a disposition to 

commit criminal activity. The jury acquitted defendant on the robbery charge (as well as 

the lesser-included offense of theft) and deadlocked on the aggravated kidnapping charge 

and allegations, showing that it conscientiously considered the evidence as to each 

charged offense. (See People v. Williams (2009) 170 Cal.App.4th 587, 613 (Williams)

[jury’s acquittal of one charge, finding of lesser-included offense on another charge, and 

not-true finding on one gang allegation showed that improper admission of gang evidence 

and prior crimes evidence was harmless].) 

 Third, the evidence of rape, forcible penetration, and assault was overwhelming. 

(See Williams, supra, 170 Cal.app.4th at p. 613 [erroneous admission of evidence shown 

where the “admissible evidence overwhelmingly established defendant’s guilt”].) There 

was no evidence suggesting a reason why Doe would consent to having sex with 

defendant, a stranger, at night on the side of the road. Doe’s injuries were consistent with 

the forcible movement, forcible intercourse, and assault she described. The witness 

observations of Doe’s demeanor were consistent with someone who had recently been 

assaulted. 

 In light of the stipulation, the jury’s verdicts, and all of the evidence, it is not 

reasonably probable that a result more favorable to the defendant would have been 

reached with fewer booking photographs (see Watson, supra, 46 Cal.2d at p. 836) and 

any error in admitting all 10 booking photographs was harmless beyond a reasonable 

doubt (see Chapman, supra, 386 U.S. at p. 24). 
24

D. Failure to Instruct On Defendant’s Oral Admissions 

 Defendant asserts that the trial court erred by failing to instruct the jury to consider 

his extrajudicial oral statements with caution (CALCRIM No. 358) and that he could not 

be convicted of a crime based solely on his oral admissions (CALCRIM No. 359). 

1. Instructions at Issue 

 CALCRIM No. 358 provides: “You have heard evidence that the defendant made 

[an] oral or written statement[s] (before the trial/while the court was not in session). You 

must decide whether the defendant made any (such/of these) statement[s], in whole or in 

part. If you decide that the defendant made such [a] statement[s], consider the 

statement[s], along with all the other evidence, in reaching your verdict. It is up to you to 

decide how much importance to give to the statement[s]. [¶] [Consider with caution any 

statement made by (the/a) defendant tending to show (his/her) guilt unless the statement 

was written or otherwise recorded.]” 

 CALCRIM No. 359 provides: “The defendant may not be convicted of any crime 

based on (his/her) out-of-court statement[s] alone. You may only rely on the defendant’s 

out-of-court statements to convict (him/her) if you conclude that other evidence shows 

that the charged crime [or a lesser included offense] was committed. [¶] That other 

evidence may be slight and need only be enough to support a reasonable inference that a 

crime was committed. [¶] The identity of the person who committed the crime [and the 

degree of the crime] may be proved by the defendant’s statement[s] alone. [¶] You may 

not convict the defendant unless the People have proved (his/her) guilt beyond a 

reasonable doubt.” 

2. Analysis 

 Defendant contends that the oral admissions and corpus delicti instructions were 

warranted here because there was evidence that he told Doe he was going to “fuck [her] 

to death” before the rape and said “I’m done, bitch” after the rape. 
25

 The Attorney General acknowledges that defendant’s statements meet the 

definition of oral admissions, such that the trial court was required to instruct the jury 

pursuant to CALCRIM No. 358, but disputes that the error was prejudicial. Perhaps 

because defendant’s argument focuses primarily on CALCRIM No. 358, the Attorney 

General does not address the issue of the trial court’s failure to instruct the jury pursuant 

to CALCRIM No. 359. We will assume the same argument applies and proceed to 

consider whether the trial court’s failure to give both instructions amounted to reversible 

error. 

 Defendant claims reversal is required under the Watson standard for state law 

error, claiming it is reasonably probable that the trial court’s failure to give the 

instructions affected the jury’s verdict. Although defendant does not advocate for 

application of the Chapman standard, he does claim that the error denied him due process 

of law under the federal constitution. 

 As our Supreme Court has explained, in analyzing the effect of a trial court’s 

failure to instruct pursuant to CALCRIM Nos. 358 and 359, we apply “the normal 

standard of review for state law error: whether it is reasonably probable the jury would 

have reached a result more favorable to defendant had the instruction been given. 

[Citations.] . . . Mere instructional error under state law regarding how the jury should 

consider evidence does not violate the United States Constitution. [Citation.] Failure to 

give the cautionary instruction is not one of the ‘ “very narrow[ ]” ’ categories of error 

that make the trial fundamentally unfair. [Citation.]” (People v. Carpenter (1997) 15 

Cal.4th 312, 393; see also Beagle, supra, 6 Cal.3d at p. 456.) 

 Defendant does not explain how failure to give the instructions was prejudicial in 

this case. Instead, he simply cites other cases that found prejudice where the court failed 

to give the oral statement instruction. In each of the cited cases, the defendant’s oral 

statements were a crucial part of the prosecution’s case. (See People v. Ford (1964) 60 

Cal.2d 772, 800 [defendant’s statements were “ ‘vitally important evidence’ ”]; People v. 
26

Bemis (1949) 33 Cal.2d 395, 401 [defendant’s statements were “the only evidence that 

connected defendant with the crime”]; People v. Lopez (1975) 47 Cal.App.3d 8, 14 

[defendant’s statements had “vital bearing . . . upon the only substantial issue the jury 

was required to resolve”]; People v. Henry (1972) 22 Cal.App.3d 951, 959 [case turned 

on whether defendant had admitted possession of jacket containing marijuana]; Stork v. 

State (Alaska 1977) 559 P.2d 99, 103 [evidence of defendant’s statements “was a 

substantial factor leading to his conviction”].) 

 The cited cases are distinguishable from the instant case, where defendant’s 

statements were not critical to the prosecution’s case. Defendant’s statements merely 

corroborated the other evidence of the rape, which included Doe’s testimony, the DNA 

evidence, the physical evidence of her injuries, testimony about Doe’s appearance and 

demeanor, and the evidence of defendant’s change in appearance following the incident. 

(See People v. Padilla (1995) 11 Cal.4th 891, 923 [failure to give cautionary instruction 

regarding defendant’s statements was harmless in light of the “comparatively marginal 

role defendant’s statement must have played in the totality of the record”], overruled on 

other grounds by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 (Hill).) Further, there 

was no conflict in the evidence about what defendant said, and the prosecutor mentioned 

defendant’s statements only briefly during closing argument – primarily when discussing 

the robbery, of which defendant was acquitted.6

 On this record, applying any standard 

for harmless error, the trial court’s failure to instruct the jury to consider defendant’s 

statements with caution and to give a corpus delicti instruction was not prejudicial. 

 6

 During closing argument, the prosecutor noted that Doe knew defendant had 

ejaculated, either because she “felt something” or because he said “ ‘Done, bitch.’ ” 

When discussing the robbery count, the prosecutor mentioned the “ ‘Done, bitch’ ” 

statement again, saying it would be unreasonable to believe that someone else came and 

took the purse. The prosecutor argued that the “ ‘I’m going to fuck you until you die’ ” 

statement showed defendant used fear to take Doe’s purse. 
27

E. Cumulative Error 

 Defendant presents a very brief argument that the cumulative effect of the errors 

deprived him of a fair trial. He does not specify which errors his argument pertains to, or 

how the errors, “though independently harmless,” rose “by accretion to the level of 

reversible and prejudicial error.” (Hill, supra, 17 Cal.4th at p. 844.) “ ‘[A]n appellate 

court [is not] required to consider alleged error where the appellant merely complains of 

it without pertinent argument. [Citation.]’ ” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 

1590, 1615.) 

 In any event, we have determined that reversal of the kidnapping allegations is 

required, so the cumulative effect of any errors could only pertain to the rape, 

penetration, and assault counts. With respect to those counts, defendant has challenged 

the trial court’s admission of the booking photographs and the trial court’s failure to 

instruct the jury pursuant to CALCRIM Nos. 358 and 359. As discussed above, the trial 

court did not abuse its discretion by admitting the booking photographs, and any error 

was harmless. Likewise, the failure to give CALCRIM Nos. 358 and 359 was harmless. 

 “A defendant is entitled to a fair trial, not a perfect one.” (People v. Mincey

(1992) 2 Cal.4th 408, 454.) When a defendant invokes the cumulative error doctrine, 

“the litmus test is whether defendant received due process and a fair trial.” (People v. 

Kronemyer (1987) 189 Cal.App.3d 314, 349 (Kronemyer).) Accordingly, any claim 

based on cumulative error must be assessed “to see if it is reasonably probable the jury 

would have reached a result more favorable to defendant in their absence.” (Ibid.) 

 Here, where the few errors concerning the substantive offenses were harmless, 

defendant cannot establish that it is reasonably probable he would have a received a more 

favorable result in the absence of the errors. In other words, we are convinced that 

defendant “received due process and a fair trial.” (Kronemyer, supra, 189 Cal.App.3d at 

p. 349.) 
28

F. DNA Collection 

 Beginning January 1, 2009, the DNA and Forensic Identification Database and 

Data Bank Act of 1998 (Act) required “any adult person arrested or charged with any 

felony offense” to provide a blood sample and buccal swab sample. (§§ 295, subd. (a), 

296, subd. (a)(2)(C).) The constitutionality of this part of the Act is now being 

considered by the California Supreme Court in People v. Buza (2011) 197 Cal.App.4th 

1424, review granted October 19, 2011, S196200 (Buza). Briefing in Buza has been 

deferred pending the United States Supreme Court’s decision in Maryland v. King (2012) 

422 Md. 353, cert. granted Nov. 9, 2012, No. 12–207, __ U.S. __ [133 S.Ct. 594, 184 

L.Ed. 2d 390], in which the high Court is considering a Fourth Amendment challenge to a 

Maryland statute that is similar to the Act. 

 Defendant notes that his DNA was taken following a felony arrest for which no 

charge was ever filed,7

 and that he was connected to the Doe incident only because of 

that DNA sample. He contends that if the Act is unconstitutional, his Fourth Amendment 

rights were violated and that all evidence obtained as a result should have been 

suppressed. He acknowledges that he did not raise this claim below but contends this 

court may review the issue for various reasons: (1) because it involves a pure question of 

law (see, e.g., People v. Yeoman (2003) 31 Cal.4th 93, 118), (2) by reviewing the claim 

as one involving ineffective assistance of counsel, or (3) by exercising our inherent 

discretion (see People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6). 

 The Attorney General argues that we should not consider the merits, pointing out 

that an appellate court “is in fact barred” from considering an issue not raised below 

“when the issue involves the admission (Evid. Code, § 353) or exclusion (id., § 354) of 

evidence.” (People v. Williams, supra, 17 Cal.4th at p. 161.) The Attorney General 

 7

 This assertion was made by trial counsel, and not challenged by the prosecutor, 

during discussion of the booking photos. Trial counsel indicated that defendant had been 

arrested for felony assault but “that was either dismissed or no file.” The probation report 

reflects that defendant’s criminal record consists only of misdemeanor convictions. 
29

addresses the ineffective assistance argument, asserting that reasonable trial counsel 

could have determined there was no basis for bringing a challenge to the Act based on the 

state of the law at the time. 

 In light of defendant’s failure to raise this issue below, we believe the appropriate 

way to examine this claim is through defendant’s ineffective assistance of counsel 

argument. 

1. Standard of Review 

 “To prevail on a claim of ineffective assistance of counsel, a defendant ‘ “must 

establish not only deficient performance, i.e., representation below an objective standard 

of reasonableness, but also resultant prejudice.” ’ [Citation.] A court must indulge a 

strong presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance. [Citation.] Tactical errors are generally not deemed reversible, 

and counsel’s decisionmaking must be evaluated in the context of the available facts. 

[Citation.] To the extent the record on appeal fails to disclose why counsel acted or 

failed to act in the manner challenged, we will affirm the judgment unless counsel was 

asked for an explanation and failed to provide one, or unless there simply could be no 

satisfactory explanation. [Citation.] Moreover, prejudice must be affirmatively proved; 

the record must demonstrate ‘a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 389 (Maury).) 

2. Section 296 

In the present case, defendant argues that trial counsel was ineffective in failing 

to move to suppress the evidence obtained as a result of his DNA sample pursuant to 

section 296. We therefore provide a brief overview of that section. 

 As noted above, section 296 is part of DNA and Forensic Identification Data Base 

and Data Bank Act of 1998. (§ 295 et seq.; see People v. Robinson (2010) 47 Cal.4th 
30

1104, 1113 (Robinson).) “The Act became effective January 1, 1999. (Stats. 1998, 

ch. 696, § 4.) It created a databank to assist ‘criminal justice and law enforcement 

agencies within and outside California in the expeditious detection and prosecution of 

individuals responsible for sex offenses and other violent crimes, the exclusion of 

suspects who are being investigated for those crimes, and the identification of missing 

and unidentified persons, particularly abducted children.’ ” (Robinson, supra, at 

pp. 1116-1117, fn. omitted.) 

 The Act has been amended several times. (Robinson, supra, 47 Cal.4th at p. 1117, 

fn. 13.) Most recently, “[t]he voters of this state approved Proposition 69 on November 

2, 2004. Proposition 69 made significant amendments to the Act and was an urgent law 

that became immediately effective on November 3, 2004.” (Good v. Superior Court 

(2008) 158 Cal.App.4th 1494, 1503 (Good).) Relevant here, “Proposition 69 amended 

section 296, subdivision (a) to substantially broaden the scope of DNA sample collection. 

The new subdivision (a)(1) requires DNA samples from any adult or juvenile convicted 

of any felony offense, not just the listed offenses in the prior law. [Citation.] The new 

subdivision (a)(2) requires samples from any adult arrested for or charged with felony 

sex offenses requiring registration; murder or voluntary manslaughter or the attempt 

thereof; and, beginning in 2009, any felony offense.” (Good, supra, at p. 1503, fn. 

omitted.) 

 Sections 296 and 296.1 govern the collection of DNA samples from adult felony 

arrestees. The current version of section 296, subdivision (a)(2)(C) provides in part: 

“The following persons shall provide buccal swab samples, . . . and any blood specimens 

or other biological samples required pursuant to this chapter for law enforcement 

identification analysis: [¶] . . . [¶] Commencing on January 1 of the fifth year following 

enactment of the act that added this subparagraph, as amended, any adult person arrested 

or charged with any felony offense.” 
31

 Section 296.1, subdivision (a)(1)(A) currently provides: “Each adult person 

arrested for a felony offense as specified in subparagraphs (A), (B), and (C) of 

paragraph (2) of subdivision (a) of Section 296 shall provide the buccal swab samples 

and thumb and palm print impressions and any blood or other specimens required 

pursuant to this chapter immediately following arrest, or during the booking or intake or 

prison reception center process or as soon as administratively practicable after arrest, but, 

in any case, prior to release on bail or pending trial or any physical release from 

confinement or custody.” 

3. Case Law Concerning DNA Collection and Section 296 

 The California Supreme Court has ruled that the nonconsensual collection of DNA 

samples from a convicted felon is reasonable under the Fourth Amendment “as 

‘ “ ‘judged by balancing its intrusion on the individual’s Fourth Amendment interests 

against its promotion of legitimate government interests.’ ” ’ [Citation.]” (Robinson, 

supra, 47 Cal.4th at p. 1123; see also In re Calvin S. (2007) 150 Cal.App.4th 443, 445 

[Fourth Amendment does not preclude collection of DNA sample from juvenile 

adjudicated under Welf. & Inst. Code, § 602]; Coffey v. Superior Court (2005) 129 

Cal.App.4th 809, 823 [for purposes of the Act, defendant was convicted of a felony when 

he pleaded guilty to a wobbler offense as a felony].) 

 As noted above, at present, the issue of whether the Fourth Amendment precludes 

the nonconsensual collection of DNA samples from a felony arrestee under section 296, 

subdivision (a)(2)(C) is pending before the California Supreme Court in Buza, supra, 197 

Cal.App.4th 1424, review granted October 19, 2011, S196200. The First District Court 

of Appeal considered the issue and determined that the Act, “to the extent it requires 

felony arrestees to submit a DNA sample for law enforcement analysis and inclusion in 

the state and federal DNA databases, without independent suspicion, a warrant or even a 

judicial or grand jury determination of probable cause, unreasonably intrudes on such 
32

arrestees’ expectation of privacy and is invalid under the Fourth Amendment . . . .” 

(Buza, supra, at p. 1461.) 

 The Buza decision was published on August 4, 2011, after trial but before 

sentencing in the present case. The California Supreme Court granted review on 

October 19, 2011, which had the effect of depublishing the decision. (See People v. 

McKee (2010) 47 Cal.4th 1172, 1218; Cal. Rules of Court, rule 8.1105(e)(1).) 

 Prior to Buza, only one published case had addressed the constitutionality of 

section 296, subdivision (a)(2)(C) – Haskell v. Brown (N.D. Cal. 2009) 677 F.Supp.2d 

1187 (Haskell), which found that “California’s DNA searching of arrestees appears 

reasonable.” (Id. at p. 1201.)8

 In Haskell, the plaintiffs sought to enjoin further DNA 

sampling from felony arrestees under section 296. The district court denied the 

injunction, finding the plaintiffs were unlikely to prevail on the merits. (Ibid.) In 

analyzing the issue, the district court weighed the privacy interests of an individual 

arrestee against the government’s interests in identification, solution of past crimes, and 

prevention of future crimes. (Id. at pp. 1196-1201.) Ultimately, the district court 

concluded that the privacy interests of the individual arrestees did not outweigh “the 

government’s compelling interest in identifying arrestees, and its interest in using 

arrestees’ DNA to solve past crimes.” (Id. at p. 1201.) 

4. Analysis 

 In addressing defendant’s claim of ineffective assistance of counsel, we first note 

that we frequently decline to make such determinations on direct appeal. As our 

Supreme Court has explained, “An appellate court should not declare that a police officer 

acted unlawfully, suppress relevant evidence, set aside a jury verdict, and brand a defense 

attorney incompetent unless it can be truly confident all the relevant facts have been 

 8

 A three-judge panel of the Ninth Circuit affirmed the district court’s Haskell 

decision in Haskell v. Harris (9th Cir. 2012) 669 F.3d 1049, but the Ninth Circuit 

subsequently granted rehearing en banc. (Haskell v. Harris (9th Cir. 2012) 686 F.3d 

1121.) 
33

developed and the police and prosecution had a full opportunity to defend the 

admissibility of the evidence.” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267 

(Mendoza Tello).) Thus, in Mendoza Tello, our Supreme Court declined to reach the 

merits of the defendant’s claim that defense counsel was ineffective in failing to bring a 

motion to suppress evidence under section 1538 .5, finding that because “ ‘the legality of 

the search was never challenged or litigated, facts necessary to a determination of that 

issue are lacking.’ ” (Id. at p. 266.) 

 The Attorney General does not assert that there are any undeveloped facts such 

that we should decline to reach the merits of defendant’s claim. Thus, we first consider 

whether the record establishes “ ‘ “deficient performance, i.e., representation below an 

objective standard of reasonableness.” ’ ” (Maury, supra, 30 Cal.4th at p. 389.) 

 Defendant argues that reasonable trial counsel would have brought a Fourth 

Amendment challenge to the use of his post-arrest DNA collection, asserting that “extant 

U.S. Supreme Court authorities” would have supported such an argument. The Attorney 

General argues that while “the best lawyer” might have challenged the DNA collection, a 

“reasonable lawyer” was not required to do so. 

 With regard to legal research, the general rule is that “constitutionally adequate 

assistance requires that the attorney diligently and actively participate in the complete 

preparation of the client’s case, and investigate all defenses of law and fact. [Citations.]” 

(People v. Roberts (2011) 195 Cal.App.4th 1106, 1129; People v. Rosales (1984) 153 

Cal.App.3d 353, 361 [“failure to research the law satisfies the first prong of the 

incompetence test”].) 

 At the time of trial in this case, there was no published case holding that DNA 

collection from a felony arrestee under section 296 violated the Fourth Amendment. 

There was a 2009 federal district court opinion finding that “California’s DNA searching 

of arrestees appears reasonable” (Haskell, supra, 677 F.Supp.2d at p. 1201), but Haskell

was not binding authority on the trial court. (People v. Bradley (1969) 1 Cal.3d 80, 86 
34

(Bradley).) Moreover, there was a Ninth Circuit case that, while not exactly on point, 

would have arguably supported a Fourth Amendment challenge to defendant’s DNA 

collection. (Friedman v. Boucher (2009) 580 F.3d 847 (Friedman) [forcible DNA 

extraction of pretrial detainee in Nevada violated the Fourth Amendment]; see Haskell, 

supra, 677 F.Supp.2d at p. 1201 [criticizing Friedman’s analysis].) 

 As it is a close question whether reasonable trial counsel would have brought a 

motion to suppress at the time of trial, we resolve this issue based on the second prong of 

the ineffective assistance test. “[A] court need not determine whether counsel’s 

performance was deficient before examining the prejudice suffered by the defendant as a 

result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade 

counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground 

of lack of sufficient prejudice, which we expect will often be so, that course should be 

followed.” (Strickland v. Washington (1984) 466 U.S. 668, 697 (Strickland); In re Cox 

(2003) 30 Cal.4th 974, 1020.) 

 To establish prejudice, “[t]he defendant must show that there is a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” (Strickland, supra, 466 U.S. at p. 694.) 

 Under the state of the law at the time defendant could have brought a motion to 

suppress, it is not reasonably probable that the trial court would have granted the motion. 

Buza had not yet been published. The trial court was not bound by Haskell, despite the 

fact that it considered an issue involving the federal constitution, but the district court’s 

opinion was nevertheless “persuasive and entitled to great weight. [Citations.]” 

(Bradley, supra, 1 Cal.3d at p. 86.) The Friedman case from the Ninth Circuit was not 

directly on point because it did not involve DNA extraction under statutory authority, and 

it had been criticized in Haskell. (See Friedman, supra, 580 F.3d at p. 853-856; Haskell, 

supra, 677 F.Supp.2d at p. 1201.) Had defendant moved to suppress, the prosecution 
35

undoubtedly would have cited Haskell, which had essentially upheld section 296. 

Without any other case law as closely on point, it is not reasonably probable that the trial 

court would have disregarded Haskell and granted the motion to suppress. (See People v. 

Camilleri (1990) 220 Cal.App.3d 1199, 1211 [given “the lack of merit” of new theory for 

suppressing evidence under relevant case law, it was “not reasonably probable that the 

outcome would have been altered” had defense counsel asserted it].) 

 Having determined that defendant suffered no prejudice as a result of trial 

counsel’s failure to bring a motion to suppress, we conclude that defendant’s claim of 

ineffective assistance of counsel lacks merit. We emphasize that our ruling today is 

limited to defendant’s claim of ineffective assistance of counsel and we express no 

opinion on the constitutionality of section 296, subdivision (a)(2)(C).9

DISPOSITION 

 The judgment is reversed, and the matter is remanded for possible retrial of the 

kidnapping allegations (§ 667.61, subds. (b), (e)(1).) 

 ___________________________________________ 

 BAMATTRE-MANOUKIAN, J. 

WE CONCUR: 

 9

 We also note that our decision does not preclude defendant from seeking relief in 

the event that the United States Supreme Court and/or California Supreme Court 

decisions in King and Buza are favorable to him. “[A] petitioner may raise an issue in 

habeas corpus proceedings if an intervening change in the law has occurred, even if the 

issue was raised on direct appeal. [Citation.]” (In re Lucero (2011) 200 Cal.App.4th 38, 

46.) 
36

__________________________ 

ELIA, ACTING P.J. 

__________________________ 

MÁRQUEZ, J.