P. v. Garcia-Torres

Filed 2/27/26 P. v. Garcia-Torres 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

ANTOLIN GARCIA-TORRES, Defendant and Appellant.

H045484

(Santa Clara County Super. Ct. No. 213515) Defendant Antolin Garcia-Torres was convicted by jury of murder during the commission or attempted commission of a kidnapping, as well as three counts of attempted kidnapping during the commission of a carjacking. Following a penalty phase trial, the jury recommended a sentence of life in prison without the possibility of parole. That sentence was imposed, consecutive to a term of 13 years 8 months in prison. On appeal, he raises numerous issues relating to the admission of DNA and other evidence; the conduct of his trial; the sufficiency of the evidence; the jury instructions; alleged misconduct by the prosecutor; and the sentence. As we will explain, we conclude that consolidation and cross-admission of unrelated charges was improper and prejudicial under the circumstances of this case, and we will therefore reverse the judgment for possible retrial. As we will also explain, due to insufficient evidence of defendant's guilt under certain murder theories presented to the jury, we will bar the prosecution from pursuing those theories in any retrial. Defendant also petitions this court for a writ of habeas corpus; we deny his petition as moot by separate order filed this date.

1

2

I. BACKGROUND

Sierra LaMar was 15 years old when she disappeared on March 16, 2012. She had lived in Fremont until 2011. After her parents divorced, she moved to Morgan Hill with her mother and her mother's then-boyfriend. She had expressed frustration about the move to friends and family, but they did not believe she would run away. On weekends, she often visited Fremont and stayed with a friend. When she did, she would bring a bag of clothing.

The weekend before she disappeared, Sierra had stayed with her friend in Fremont. She told her friend that she planned to return the following Friday, March 16, and attend a party where she would take ecstasy. Sometime earlier that week, Sierra learned that she might not be able to take ecstasy in Fremont that weekend. On Thursday, she made plans to go to a movie theater on Friday night with another friend in Morgan Hill. Sierra's friend in Fremont did not hear from her after Thursday, March 15. On the morning of March 16, Sierra's mother left the house around 6:00 as she usually did. Her boyfriend had already left for work. Sierra was getting ready for school when her mother left and said goodbye to her. At 6:23 a.m., Sierra logged on to her laptop computer and accessed her Twitter account. She accessed her Tumblr account at 6:31 a.m. Sierra took a picture of herself wearing a San Jose Sharks sweatshirt that she had borrowed from a friend the day before. At 7:05 a.m., a friend texted Sierra, "Could you bring your stuff for me?" The friend testified that she was referring to Sierra's makeup. Sierra replied "ye" at 7:11 a.m. The friend texted Sierra back but did not get another response. Sierra's mother texted her at 6:57 a.m. and 9:45 a.m. but got no response to either message. There was no activity on Sierra's computer after 7:12 a.m. Sierra usually rode the bus to school. Her bus stop was "at the corner of Palm and Dougherty" and was "just over four-tenths of a mile" from her house on Paquita Espana Court. The stop was surrounded by open fields. Sierra usually left the house by 7:20 a.m., walked on Paquita Espana until it intersected with Dougherty, then turned left and

2

3

walked to Palm. The walk took seven to 10 minutes. Sierra would often walk briskly or run to make sure she caught the bus, which usually arrived around 7:25 a.m. On the morning of March 16, the bus driver did not see Sierra at her stop and continued driving. Video from the bus showed it passing Sierra's stop at 7:38 a.m., but the bus driver testified that the video timestamps were sometimes inaccurate and she estimated that she had passed the stop around 7:25 a.m.

At 3:24 p.m., Sierra's mother texted her, "Hi. Don't forget to take the bus."

Sierra's mother left work around 3:45 p.m. and called Sierra numerous times on her drive home but got no answer. When Sierra's mother got home around 4:45 p.m., the door was locked and the lights were off. Sierra was not home, and there were no signs of her having returned to the house after leaving that morning. Her mother drove to her school but did not find her there. After learning that Sierra had not been at school that day, her mother called 911.

Sheriff's deputies responded to the 911 call around 6:00 p.m. They called Sierra's cell phone repeatedly between roughly 7:00 p.m. and 7:17 a.m. the next morning, but got no answer. The calls initially went directly to voicemail, but around 4:00 a.m. Sierra's phone started ringing and was traced to the area of Santa Teresa Boulevard and Scheller Avenue in Morgan Hill. Deputies went to that location and searched the area but did not find Sierra or her phone. It was raining heavily in the area throughout the night. An expert testified that in rare cases, moisture inside a phone or on its battery could cause the phone to turn on and off without being operated by anyone.

A coordinated search for Sierra began on March 17. That day, volunteer searchers found Sierra's phone near the corner of Santa Teresa Boulevard and Scheller Avenue. The phone was found in a muddy field about 25 feet from the road; it was wet and appeared inoperable. A day later, searchers found a bag belonging to Sierra. The bag was between a cactus plant and a shed on Laguna Avenue near Santa Teresa Boulevard,

3

4

several blocks from where Sierra's phone was found. Sierra's school books and papers were found near the bag.

The bag contained clothes including the San Jose Sharks sweatshirt; a pair of jeans; a belt; a bra; a pair of panties; a pair of slip-on shoes; and multiple different socks. (Sierra's mother testified that Sierra sometimes wore mismatched socks.) The clothing was wet, with some items damp and some fully saturated. The jeans were unbuttoned and unzipped at the fly and smelled of urine. Although wet, the shoes were not muddy and did not appear to have been used to walk through the surrounding area. A pink purse found in the bag contained a five-dollar bill, an inhaler, a key, chopsticks, and a hair clip. Also found in the bag were a plastic makeup container with makeup and brushes inside it; Sierra's iPod; an iPod case; denture cleaner; bracelets; and a hairband. Sierra's mother recognized the bag and its contents as belonging to Sierra.

After Sierra disappeared, a student at Sierra's school gave an assistant principal a notebook that Sierra had used for Spanish class. The Spanish teacher would collect notebooks from students monthly, grade them, and return them to the students individually. Sierra's notebook contained her handwritten Spanish notes, as well as a handwritten message to the effect of "I hate my life. Whoever sees this, I will be in San Francisco by 3-16-12." Both a handwriting expert and Sierra's sister testified they did not believe Sierra had written that message. The assistant principal could not recall who gave him the notebook, and the Spanish teacher did not know who might have had the notebook or whether she had returned the notebook to Sierra after last grading it. The search for Sierra continued for months following her disappearance, but her body was not found.

A. DNA RECOVERED FROM SIERRA'S JEANS

Evidence from Sierra's bag was processed in a motor home that served as a command post during the coordinated search. The sergeant who handled the evidence at the command post acknowledged that he did not do so in full compliance with DNA

4

5

protocols and that the wooden particle board he placed the evidence on was dirty. While processing evidence from the bag, he noticed at least nine human hairs on the particle board and put them in an envelope. That envelope was labeled "Item 30" and booked into evidence. The sergeant later noticed additional "miscellaneous hair" that he believed could have been animal or human. He put the additional hair in a separate envelope, which was labeled "Item 36" and also booked into evidence.

Epithelial DNA from three areas of Sierra's jeans was analyzed. A cutting from the left upper thigh and buttock area (Area 5) contained a mixture of epithelial DNA from at least three people. According to trial testimony, it was at least 6,900 times more likely that the Area 5 DNA belonged to Sierra, defendant, and one unknown person than that it belonged to Sierra and two unknown people. When the Area 5 sample was tested specifically for male DNA, at least three male profiles were found, but no likelihood ratio was calculated for a possible four-person mixture including Sierra. A cutting from the back of the jeans (Area 12) contained a small mixture of DNA from at least two people including at least one male. Sierra and defendant could not be excluded as contributors to the Area 12 mixture but, assuming the mixture contained both of their DNA, a third person would have to be included. It was at least 18,000 times more likely that the Area 12 DNA belonged to Sierra, defendant, and one unknown person than that it belonged to Sierra and two unknown people. Another cutting from the left upper thigh and buttock area in the back of the jeans (Area 13) contained a mixture of DNA from at least three people including at least one male. It was at least 2,400 times more likely that the Area 13 DNA belonged to Sierra, defendant, and one unknown person than that it belonged to Sierra and two unknown people. When the Area 12 and Area 13 samples were tested specifically for male DNA, at least two partial male profiles were found, but there was not enough information to include or exclude anyone as a contributor and the results were deemed inconclusive.

5

6

Sperm cells were found on a back pocket of the jeans (Area 4) and the crotch (Area 6). Defendant was excluded as a possible source of the sperm cell in Area 4. An attempt to extract DNA from the sperm cell in Area 6 yielded no results. Neither sperm cell was indicative of recent ejaculation.

B. SURVEILLANCE AND INTERVIEWS OF DEFENDANT

On March 28, 2012, the lead investigator was told defendant's DNA had been found on Sierra's clothing. That night, investigators placed a GPS tracking device on defendant's car—a red Volkswagen Jetta with a black hood. The tracking device stopped transmitting a signal on March 31. Defendant remained under constant surveillance for weeks.

Surveillance video from the mobile home park where defendant lived showed a red Volkswagen Jetta with a black hood leaving the property at 7:00 a.m. on March 16, the day of Sierra's disappearance. The Jetta turned right on Monterey Highway and began traveling north, in the direction of Sierra's bus stop and downtown Morgan Hill. Sierra's bus stop was about seven miles north of the mobile home park; the drive would be expected to take 11 to 13 minutes without speeding.

At 12:53 p.m. on March 16, the Jetta drove south past the mobile home park on Monterey Highway; it turned around and entered the property at 12:57 p.m. The Jetta next left the mobile home park at 4:07 p.m., again turning right and traveling north on Monterey Highway. It returned at 5:30 p.m. from the same direction. The Jetta left the park again at 8:51 p.m. and returned at 9:17 p.m.; during that timeframe, defendant picked up his girlfriend from work.

The next day, March 17, the Jetta left the mobile home park at 9:26 a.m.; returned at 2:29 p.m.; left at 3:43 p.m.; returned at 4:18 p.m.; and left again at 7:04 p.m. It was not seen entering or leaving the park on March 18.

6

7

1. April 4 Interview

Investigators interviewed defendant at the mobile home park on April 4, 2012. Defendant told them he thought he was being followed and had removed the tracking device from his car. He denied knowing Sierra or anything about the case other than what he had seen on the news.

2. April 7 Interview

Investigators interviewed defendant again on April 7 at a sheriff's substation. Defendant said he had left home between 7:00 and 7:20 a.m. on March 16 to go fishing at the Chesbro and Uvas reservoirs, where he arrived around 8:00 a.m. He recalled missing a turn at Live Oak Avenue; when asked if he had turned on Palm Avenue instead, he replied, "That would make a lot of sense." Defendant's girlfriend was home when he left.

Defendant told the investigators he fished until "midday" then cashed a check at a Bank of America, got gas, and went home. Video from the bank showed defendant's car entering the parking lot at 12:48 p.m. Defendant got out of the car, went inside the bank, and cashed a check. His pants appeared darker in the lower leg area, as if wet. Defendant said he knew the area where Sierra had gone missing and he had a friend who lived nearby, but he did not know Sierra. The investigators described how DNA evidence was used to identify people and asked defendant, "are we gonna find any of your DNA?" Defendant answered, "Hmm. No, I mean not that I can think of." After comparing DNA evidence to fingerprint evidence, the investigators asked, "is there gonna be a reason why we would find - [¶] your DNA or your fingerprints?" Defendant twice answered, "No." When asked if he was "positive," defendant replied, "I'm pretty positive. I—I mean I don't—I mean I don't go around leaving my DNA everywhere."

The investigators explained that DNA could easily be transferred through touch, and again asked whether there was any reason defendant's DNA might be found in

7

8

connection with their investigation. Defendant again said "No" and, when prompted a second time, "No. I mean that I could think of, no."

The investigators then asked defendant, "If it does come back with your DNA what would be the reason or your fingerprints?" Defendant professed embarrassment but acknowledged in response to follow-up questioning that he liked masturbating in his car. He also said he liked spitting. When he masturbated in his car, he would use a napkin or toilet paper and throw it away afterward; if there was no trash can nearby, he would litter. Defendant told the investigators, "Yeah, that's the only way my DNA would get out there that I would think so." He did not recall having stopped in the area of Sierra's disappearance to masturbate.

C. EVIDENCE RECOVERED FROM DEFENDANT'S CAR

While defendant was being interviewed on April 7, investigators towed his car to an evidence facility where it was searched on April 9 and 10. The car was dirty and cluttered and did not appear to have been recently cleaned. Investigators found items in the trunk including a thick, white rope, a pair of neoprene gloves with a pair of cloth gloves inside them, and a floor mat.

1. DNA Evidence

The car was swabbed for DNA during the initial search in April 2012. The April swabs were taken from a large area and contained a complex mixture of DNA that was difficult to analyze. All of Sierra's DNA alleles were present in the sample, but she could not be identified as a possible contributor because the sample was too complex and many contributors were possible.

On May 9, investigators again swabbed the car for DNA. The car had already been dusted for fingerprints—which poses a risk of cross-contamination if fingerprint brushes or powder are reused from other cases—but clean brushes and powder were used. A sample taken from the armrest of the rear driver's side door contained a "degraded profile" to which Sierra was a possible contributor. The probability that a randomly

8

9

selected person would be a possible contributor to the DNA profile was conservatively estimated as 1 in 98 million.

The gloves found in the trunk of the car were tested for DNA on May 3. A sample taken from the outside of the right glove contained a small mixture of DNA from at least three people, including at least one male. Defendant, his girlfriend, and Sierra were possible contributors to the mixture. It was at least 9.3 trillion times more likely that the DNA belonged to the three possible contributors than that it belonged to defendant and two unknown people; at least 340 trillion times more likely that it belonged to the three possible contributors than that it belonged to defendant, his girlfriend, and one unknown person; and at least 840,000 times more likely that it belonged to defendant, Sierra, and one unknown person than that it belonged to defendant and two unknown people. Defendant was the source of a DNA profile found inside the left glove, and was a possible contributor to a DNA mixture found inside the right glove. Sierra was excluded as a possible contributor to that mixture. Defendant's DNA was also found in other samples taken from the car, including sperm cells on the trunk mat and a bandana found under the passenger seat.

2. Hair Evidence

On June 18, 2012, a criminalist opened an envelope containing human hairs collected from Sierra's bag three months earlier. The envelope was labeled as containing nine hairs, but the criminalist found only eight hairs inside. When examined under a microscope, several of the hairs appeared similar to hairs taken from Sierra's hairbrush. Hair was also collected from the white rope found in defendant's car. The rope was photographed on April 9 when it was removed from the car and on April 10 when it was sealed in an evidence bag. A criminalist who examined the rope in April did not initially notice any hairs on the rope. On August 14, a fiber analyst removed the rope from its packaging and photographed it; the analyst did not find it unusual that after the rope's initial examination and repackaging by the criminalist, it appears more tightly

9

10

wound in the August photographs than it did when first photographed in April. The fiber analyst found eight long black hairs and packaged them individually for analysis. Those hairs and the rope were examined by the criminalist again in January 2013, and she found 11 additional hairs. One of the eight hairs found in August 2012 was matched to Sierra's DNA profile. The hair matched to Sierra was almost 12 inches long. The criminalist examined the rope a final time in June 2014 and found 39 additional hairs. A total of 58 hairs were found on the rope, each separately packaged and identified. Six hairs were tested for DNA. Of the six hairs tested, three possibly belonged to defendant's girlfriend and two were contaminated.

3. Trace Evidence

A county employee testified that glass beads were used in road striping in areas including the Chesbro and Uvas reservoirs and the intersection of Palm and Dougherty (the location of Sierra's bus stop). The glass beads resemble grainy sand. After lines are painted on the road, beads are applied on top of the wet paint. Beads that do not stick to the paint will be blown off the roadway or picked up by passing cars. Glass beads similar to those used by the county were found on Sierra's clothing. Items like the sweatshirt and jeans, which had a large amount of debris on them in general, had the most beads on them. Similar beads were also collected from the trunk mat in defendant's car, and one bead was found on the rear floor mat behind the driver's seat. The criminalist who examined the beads had never seen them before in her work on roughly 50 previous cases.

4. Fiber Evidence

Investigators collected fiber samples from defendant's car and Sierra's clothing. A fiber analyst testified that black fibers from the floor mats found in the car were consistent with fibers found on the clothing: one on the front of the sweatshirt, two on the back of the sweatshirt, one on the back of the jeans, and one on debris from the jeans. Gray fibers from the car's carpeting were consistent with other fibers found on the

10

11

clothing: one on the front of the sweatshirt, two on the back of the sweatshirt, one on the back of the jeans, and two on the left shoe.

5. Plant Debris Evidence

An expert in plant biology reviewed debris collected from Sierra's clothing and defendant's car. Debris from both sources included pigmy weed seeds, which are

"relatively widespread" but not found in aquatic habitats; cypress pollen cone, which is found "in agricultural fields" and "around the edges of" reservoirs; tumbleweed seeds, which can be found "anywhere the wind will carry them"; and glass beads. The combination of plant materials found on Sierra's jeans and sweatshirt was "unique" in that, while each individual plant could be found in many different locations, they would rarely all be found in the same location. One plant found, a water pepper, grows only in standing water such as a reservoir. Other plants found, including lichen, also grow around reservoirs.

D. DNA RETESTING IN 2016

DNA samples were reanalyzed after updated interpretation guidelines were adopted in 2016. The updated guidelines raised the stochastic threshold—the minimum amount of Relative Fluorescence Units (RFUs) or DNA generally needed to draw conclusions from certain types of DNA mixtures. The new guidelines changed that threshold from 300 RFUs to 400 RFUs for "enhanced injections" requiring DNA amplification to get results. Under the new guidelines, the analytical threshold at which a DNA peak could be recognized as an allele was set at 150 RFUs; peaks between 50 and

149 RFUs could be "interpreted with caution." The threshold amount of DNA generally needed to analyze three-person mixtures was set at 0.2 nanograms. The Area 12 sample taken from Sierra's jeans was a three-person mixture containing 0.14 nanograms of DNA. Although the amount of DNA fell below the 0.2- nanogram threshold generally required, the guidelines allowed for "flexibility" and the peak heights in the sample appeared "higher than what you would expect" based on the

11

12

low amount of DNA present. A lab supervisor "decided that the sample would be appropriate to go ahead and continue on and make conclusions with." Reinterpretation did not change the original conclusions or likelihood ratios for the Area 12 sample, the other samples taken from Sierra's jeans, or the right glove sample. The sample taken from the door of defendant's car contained some peaks falling below the relevant stochastic and analytical thresholds. DNA at one location fell below the 400-RFU stochastic threshold but was nonetheless used in the calculation because, based on a review of the entire sample, a lab supervisor believed that peak represented a

"major component" attributable to a single major contributor. Removing that location from the analysis would not affect Sierra's inclusion as a possible contributor but would affect the likelihood ratio. With the location included in the analysis, the original conclusions did not change.

E. CHARGES SEPARATE FROM THE EVENTS UNDERLYING COUNT 1

Defendant was charged with three counts of attempted kidnapping during the commission of a carjacking. Those charges were based on three incidents that took place in Safeway store parking lots in Morgan Hill between March 19 and March 26, 2009 when defendant was 17 years old.

1. Count 2

Shortly before 11:00 p.m. on March 19, 2009, a woman left the Safeway store on Dunne Avenue in Morgan Hill and walked toward her car in the parking lot. As she walked, she noticed a man in a baggy hooded sweatshirt and dark jeans approaching her from her left side. She rushed to her car, got in, and locked the doors. The man yanked on the driver's door handle and smirked when the door did not open. The woman drove home and called 911.

At trial, the victim described the man as Hispanic; in his twenties; 5 feet 11 inches or six feet tall; and about 180 pounds. She had previously described him to investigators as 5 feet 10 or 11 inches tall and possibly 200 pounds. In May 2012, she was shown a

12

13

photographic lineup and was unable to identify the man. When she first saw defendant on the news in connection with Sierra LaMar's disappearance in 2012, she thought he had "the same exact look" or "smirk" as the man who had attempted to open her car door three years earlier, but she could not "definitely" say at the time of trial that they were the same person.

2. Count 3

Around 11:20 p.m. on March 19, 2009, a woman left the Safeway store on Tennant Avenue in Morgan Hill. (The two stores are 1.8 miles apart, and an investigator described covering the distance between them in 24 to 28 minutes through "a combination of walking [and] jogging.") When the woman unlocked her car by pressing a button on her key fob, she noticed a flashing light on the dashboard indicating that "the alarm had gone off at some point." She got in the car and threw her purse on the passenger seat. As she was about to start the car, she was attacked by a man sitting in the seat directly behind her. He grabbed her hair to pull her down and put a stun gun to her neck, shocking her at least five times. When the shocks stopped, she asked the man what he wanted but he did not respond. Her purse was sitting on the passenger seat and her car key was in the ignition. She was wearing jewelry, which the man did not attempt to grab. The woman lowered one of the car windows and began screaming for help, at which point the man repeatedly punched her in the face with his left hand while holding her hair with his right hand. A bystander sitting in a nearby car noticed the commotion and "began flashing his high beams." The man got out of the car and ran away. The woman followed him in her car until he disappeared between two buildings; she then drove back to the Safeway parking lot and called 911.

At trial, the victim described her attacker as a light-skinned Hispanic or African- American man in his teens or early twenties. She said he had brown eyes and was wearing a black sweatshirt. A responding officer also spoke to the man who had witnessed the attack. That man described the attacker as a white man in his twenties,

13

14

about 5 feet 10 inches tall, wearing dark clothing. Surveillance video showed someone in black clothing entering the victim's car, then leaving seven or eight seconds later. Based on the descriptions of the suspects, a responding officer believed both March 19 incidents may have involved the same person. Officers found a stun gun in the backseat of the second victim's car, with a nine-volt Duracell battery inside. The victim viewed a photographic lineup in May 2012 and was unable to identify her attacker. In June 2012, a fingerprint on the battery from the stun gun was matched to defendant. A friend of defendant's told investigators that he had seen defendant with a stun gun in 2008. Later, defendant's friend formed the opinion that the item he saw in 2008 was not actually a stun gun and looked more like a dog repeller.

3. Count 4

Around 8:30 p.m. on March 26, 2009, a woman drove to the Safeway store on Dunne Avenue. She had heard about attacks on women in the Safeway parking lot and brought a knife for protection. The woman parked, turned her car off, and grabbed the knife from the glove compartment. As she grabbed the knife and started to open it, a man entered her car from behind and grabbed her hand. He pressed the knife against her neck while hitting her legs with his other hand. She screamed, asked the man to stop, and told him she was pregnant. He let her go, got out of the car, and walked away quickly. The woman's purse was in the center console within the man's reach, but he did not attempt to grab it at any point during the incident. The woman examined her car after the attack and did not notice anything missing.

The woman described her attacker as light-skinned; possibly Mexican; about 5 feet 10 inches tall; and about 200 pounds. She noticed a tattoo on his forearm. In 2012, she viewed photographic lineups and was unable to identify the man or his tattoo. Defendant's friend testified that defendant had tattoos on his forearms in 2008 or 2009.

14

1 5

F. OTHER PROSECUTION EVIDENCE

1. Defendant's Work History

Defendant worked at the Tennant Avenue Safeway location from September 2007 until July 2009, then at the Dunne Avenue location from July 2009 until October 2010. He was not working on March 19, 2009 or March 26, 2009.

From July 2011 until his arrest in May 2012, defendant worked as an arborist. He was not working on March 16, 2012. His job required him to carry ropes, gloves, knives, and zip ties. Defendant's boss had given him the white rope investigators found in his car, as well as a pair of gloves, but had not given him the cloth gloves with neoprene gloves over them.

2. Defendant's Relationship History

F.S.¹was in a relationship with defendant at the time of Sierra's disappearance, and they lived together at the mobile home park. (The relationship ended before defendant's trial.) Defendant was the only one who drove the red Jetta with the black hood; F.S. did not drive it because it had a manual transmission. F.S. described defendant as "outdoorsy" and about six feet or 6 feet 1 inch tall. When interviewed by investigators in April 2012, F.S. said she and defendant had been asleep between 7:00 a.m. and 8:00 a.m. on March 16. F.S. later told the grand jury that she had spent that morning doing laundry at her mother's house, and that she did not remember whether defendant had been with her. She also described to the grand jury how defendant customarily folded pants, which was consistent with how Sierra's jeans were found.

At trial, F.S. testified that she did not know defendant to do laundry or fold clothing and was not sure why she had told the grand jury otherwise. She was also not sure what she had done on the morning of March 16, 2012 but thought she had gone to do ¹Consistent with California Rules of Court, rule 8.90, we refer to certain witnesses by their initials to protect their privacy.

15

16

laundry at her mother's house, where defendant would have driven her around 8:00 a.m. F.S. worked that evening from 5:30 p.m. to 9:07 p.m. She believed defendant had also worked that day. On March 17 or 18, F.S. and defendant left to go skiing or snowboarding with a friend of defendant and the friend's cousin.

3. Safeway Purchases

When making purchases at Safeway, customers have the option of using a Safeway Club Card that tracks their purchases and gives them access to discounts. Customers can use a physical card provided by Safeway or provide a phone number associated with an account. Before getting his own Safeway Club Card in 2010, defendant used an account that belonged to his sister (who also worked at Safeway). Defendant's sister was working at the Tennant Avenue Safeway on March 19, 2009. At 4:20 p.m., while she was on a break, her account was used to buy a two-pack of nine-volt Duracell batteries using cash at the same location. Defendant's sister did not remember making that purchase and believed it had been made by someone else. In January 2012, defendant's Safeway Club Card was used to buy two bottles of Safeway brand bleach. On March 13, 2012, his card was used to buy a bottle of Safeway bleach and a turkey baster. On March 27, 2012, his card was used to buy a bottle of Clorox bleach. Defendant's then-girlfriend did not recall asking defendant to buy those items and did not believe them to be normal purchases for him. When investigators searched defendant's home, they found a bottle of Clorox bleach but did not find any Safeway bleach or a turkey baster.

G. DEFENSE EVIDENCE

A friend of Sierra from her school in Morgan Hill testified that Sierra had talked about missing her friends from Fremont. Sierra said her mother was strict and had placed parental restrictions on Sierra's phone that prevented her from using it at night. She told her friend she was afraid to discuss her sexuality with her mother. Sierra had jokingly mentioned running away from home.

16

17

While still living in Fremont, Sierra had also mentioned running away to the daughter of her mother's boyfriend. When Sierra showed her a pink suitcase packed with clothes, she tried to talk Sierra out of running away. After Sierra disappeared, investigators found the pink suitcase in Sierra's closet.

A therapist had seen Sierra twice in March 2012, the first time with her mother and the second time by herself. During her first visit to the therapist on March 6, Sierra noted on an intake form that she felt sad most of the time; slept too much; had experienced an unexplained change in appetite; had difficulty making decisions; sometimes felt hopeless or worthless; got tired for no reason; and did not feel like she had a full and rewarding life. The therapist considered Sierra's answers to the intake questions normal for a teenager who had recently moved away from her lifelong home, and did not find them particularly concerning. When the therapist saw Sierra alone on March 13, Sierra was talkative and seemed happy.

1. Events of March 16, 2012

A defense investigator reviewed video footage from various sources to establish a timeline for March 16, 2012. The investigator noted defendant's car leaving the mobile home park at approximately 7:00 a.m. At 7:26 a.m., Sierra's bus stopped to pick up a student at the stop immediately following Sierra's. Defendant's car entered the Bank of America parking lot at 12:49 p.m. and left at 12:54 p.m. It entered the mobile home park at 12:57 p.m.; left at 4:07 p.m.; returned at 5:30 p.m.; left again at 8:51 p.m.; and returned again at 9:17 p.m.

A witness testified that while driving to work that morning, she passed the intersection of Santa Teresa Boulevard and Scheller Avenue (where Sierra's phone was later found) sometime around 7:20 or 7:23 a.m. As she approached the intersection, a light brown or gold car "jumped right out in front of" her from a stopped position and almost ran her off the road. The car "was not accelerating at all" and was "weaving back and forth outside of the lines" while driving well below the speed limit. It was a

17

18

hatchback with "big plastic louvers over the back," so the witness could not see the inside of the car. After a few minutes, the car stopped driving erratically and the witness eventually lost sight of it. The witness reported the incident to investigators after she learned about Sierra's disappearance, but did not hear from them.

2. Activity on Sierra's Phone and Facebook Account

An expert in cell phone forensics testified that four text messages were sent or received by Sierra's phone between 6:58 a.m. and 7:12 a.m. on March 16, 2012. Between 7:13 a.m. and 11:33 a.m., there was no activity on the phone that would provide information about its location. From 11:33 a.m. until 10:46 p.m., the phone was not connected to a cellular network. Multiple text messages were delivered to the phone at 10:46 p.m. At 11:00 p.m. and 11:09 p.m., the phone rang in response to incoming calls. The phone was out of network between 12:03 a.m. and 12:29 a.m. on March 18. Nine text messages were delivered to the phone at 1:50 a.m., and the phone remained in network until 12:56 p.m. Water damage could cause a phone to short out or cycle in and out of connectivity.

After March 16, 2012, Sierra's Facebook account was accessed multiple times from IP addresses not known to be associated with Sierra or anyone in her household. At least four different IP addresses accessed the account between March 17 and March 20. (A prosecution rebuttal witness testified that at least one of the IP addresses was associated with the Santa Clara County sheriff's office.)

3. Analysis of Trace Evidence, DNA, and Hair

A forensic expert reviewed trace evidence from Sierra's clothing and found no evidence of dragging. Debris from Sierra's jeans contained glass beads and acrylic paint, which could be used for road striping. Soil samples taken from the areas where Sierra's bag and phone were found did not contain glass beads. Glass beads were present in samples taken from the area of Sierra's bus stop, a nearby field, and the end of Sierra's

18

19

street. A second forensic expert agreed there was no evidence someone had been dragged while wearing Sierra's jeans.

A DNA expert testified that DNA can be transferred multiple times through touch, and it is possible for a person's DNA to be found somewhere the person never was. Samples containing mixtures of multiple people's DNA are complex and difficult to interpret. Overlapping alleles allow for numerous possibilities, and a greater number of peaks also complicates analysis. Many labs "won't even attempt to interpret" DNA mixtures involving four or more people, and incorrect assumptions regarding the number of contributors to a sample can lead to incorrect conclusions or likelihood ratios. The defense expert considered it "very dangerous" to assume that there was not a third male contributor (for a total of four contributors) to the Area 5 sample taken from Sierra's jeans. The decision to analyze the Area 5 sample despite the amount of DNA present falling below guideline standards was apparently based on the assumption that there were three total contributors; the lab's protocols provided that four-person DNA mixtures would generally not be interpreted. Had peaks falling below the analytical threshold or an unnecessarily high stochastic threshold been considered, defendant could have been excluded as a contributor to certain portions of the sample and other possible contributors could have been included.

The defense expert also described concerns about the assumption there were three total contributors to the Area 13 sample taken from Sierra's jeans. Small peaks that were assumed to be "stutter peaks" (byproducts of the DNA amplification process) could have instead represented the actual DNA of a fourth contributor. With respect to a sample taken from one of the gloves recovered from the trunk of defendant's car, the expert opined that a fourth contributor was possibly present. The stochastic threshold for the sample from the door of defendant's car should have been set at 400 RFUs, which would have excluded one allele in the sample from consideration and required recalculation of the likelihood ratio. All other major alleles present in the door sample, including one that

19

20

occurs in less than one percent of the population, were consistent with Sierra's DNA profile.

A forensic photography expert compared photographs taken in April and August 2012 of the white rope found in defendant's car. The April photograph was of high quality and "small frays in the rope" were visible, but no hairs were visible on the rope. In the August photograph, which was taken using different camera settings, the rope appeared to be wrapped more tightly and hairs were visible on the rope. A sheriff's sergeant testified that during trial, he was asked to locate the envelope labeled "Item 36"

containing miscellaneous hairs collected from Sierra's bag. He did not find an envelope labeled "Item 36" but found a small coin envelope with "31" written on it packaged with Item 3. That envelope contained hairs.

4. Defendant's Activities Around the Dates of the Crimes

Defendant's friend D.F. showed him a stun gun sometime before 2009. Defendant said it was "cool" but did not seem "too fond of it." D.F.'s stun gun was not the one used in the Safeway attack. A crime scene investigator testified that the stun gun used in the attack would temporarily shock a person, not make them lose consciousness. In late 2008 and early 2009, defendant was working as a courtesy clerk at the Tennant Avenue Safeway. Several of his former coworkers testified that if an item was opened in the store, a courtesy clerk would bring the item to inventory control for repackaging and possible resale at a discount. Packages of batteries frequently broke open because the batteries were too heavy for their packaging. Open packages of batteries were generally not taped closed and returned to the shelves to be sold at full price, but it could have happened.

D.F., his cousin, defendant, and F.S. left for a preplanned snowboarding trip on the night of March 17, 2012 and snowboarded the next day. Defendant's demeanor seemed normal to D.F. They smoked marijuana together during the trip. In the past, they had made marijuana wax together using a glass tube. D.F. believed a turkey baster could be

20

21

used instead of a glass tube, but he had never used a turkey baster for that purpose or seen defendant use one. A cannabis expert testified that marijuana wax can be made using a turkey baster, although he had rarely seen that process used.

II. DISCUSSION

Defendant raises 22 separate issues in his opening brief, and raises two more in supplemental briefing. In this opinion, we address only those issues "necessary to the final determination of the case." (Code Civ. Proc., § 43.) We first address the sufficiency of the evidence, as a finding of insufficient evidence would bar retrial. Finding sufficient evidence of defendant's guilt (although not under certain theories we will identify on count 1), we have considered defendant's other contentions and conclude reversal is required because the improper consolidation and cross-admission of counts was prejudicial. Given that conclusion, we address defendant's remaining arguments only to the extent that they raise issues likely to arise again in the event of retrial. (See, e.g., People v. Wilson (1992) 3 Cal.4th 926, 930 ["in an attempt to avoid the recurrence of error on retrial, we discuss certain issues for the guidance of the parties and the trial court on remand"]; People v. MacPherson (1970) 2 Cal.3d 109, 116; People v. Ridley (1965) 63 Cal.2d 671, 677.)

A. SUFFICIENCY OF THE EVIDENCE AS TO COUNT 1

Defendant contends there was insufficient evidence to convict him of first degree murder and find the kidnapping special circumstance true. "In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Bolin (1998) 18 Cal.4th 297, 331.) We presume the "existence of every fact that the trier of fact could reasonably deduce from the evidence" to support the judgment. (People v. Medina (2009) 46 Cal.4th 913, 919.) To overturn a jury's finding,

"it must clearly appear that upon no hypothesis whatever is there sufficient substantial

21

22

evidence to support it." (People v. Redmond (1969) 71 Cal.2d 745, 755.) Here, there was sufficient substantial evidence from which a jury could find defendant guilty of first degree murder under a felony murder theory and find the kidnapping special circumstance true. But there was not sufficient substantial evidence from which a jury could find defendant guilty of willful, deliberate, and premeditated murder.

1. Evidence of Corpus Delicti

"In a prosecution for murder, as in any other criminal case, the corpus delicti—i.e., death caused by a criminal agency—must be established independently of the extrajudicial statements, confessions or admissions of the defendant." (People v. Towler (1982) 31 Cal.3d 105, 115.) Defendant argues the corpus delicti was not established here because Sierra's body had not been found and there was insufficient evidence of death caused by a criminal agency. He cites People v. Scott (1959) 176 Cal.App.2d 458 and its suggestion that evidence of the corpus delicti in a murder prosecution where the body has not been found must be "sufficient to preclude every reasonable theory of innocence of the accused." (Id. at p. 464.) The Attorney General argues that Scott conflicts with the California Supreme Court's later holding in Towler that "the corpus delicti rule is satisfied 'by the introduction of evidence which creates a reasonable inference that death could have been caused by a criminal agency … even in the presence of an equally plausible noncriminal explanation of the event.' " (Towler, at p. 117.) We need not resolve the parties' disagreement regarding the effect of Scott because, even assuming the court of appeal contemplated a more stringent corpus delicti requirement for murder cases involving possible missing persons, we are bound by the Supreme Court's much more recent articulation in Towler. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The evidence here sufficiently established that Sierra died as the result of a criminal act. Sierra was 15 years old, with no apparent means of supporting herself independently; she was absent from school on March 16, 2012, despite getting ready for school that morning as usual and communicating with

22

23

friends about seeing them later that day; and she was not seen or heard from again in the five years between her disappearance and defendant's trial. In the days immediately following her disappearance, investigators found her cell phone and a bag containing her other belongings (including clothes she had been wearing the day she disappeared) but did not find her body. We are satisfied that those facts meet accepted corpus delicti standards.

2. Evidence of Willful, Deliberate, and Premeditated Murder

First degree willful, deliberate, and premeditated murder must be committed with express malice—i.e., willfully. (People v. Concha (2009) 47 Cal.4th 653, 662; see Pen. Code, § 188, subd. (a)(1); unspecified statutory references are to the Penal Code.) The remaining elements of premeditation and deliberation are generally established through the following types of evidence: "(1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as 'planning' activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a 'motive' to kill the victim," and "(3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a 'preconceived design' to take his victim's life in a particular way for a 'reason' which the jury can reasonably infer from facts of type (1) or (2)." (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) The evidence of premeditation and deliberation is generally sufficient "when there is evidence of all three types" or "at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3)." (Id. at p. 27.) But the factors discussed in Anderson, "while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive."

(People v. Perez (1992) 2 Cal.4th 1117, 1125.)

23

24

Defendant contends there is insufficient evidence he killed Sierra with express malice after premeditation and deliberation, so as to make him guilty of first degree murder. Indeed, there was little evidence that defendant planned to kill Sierra before encountering her on March 16, 2012, or that he formed the intent to kill her sometime after encountering her. The Attorney General notes that defendant must have driven

"several miles out of the way of his stated trip to the reservoirs" in order to reach the area of Sierra's bus stop. But while that may suggest defendant planned to do something that morning besides go fishing, it does not establish that his plans involved murder. Nor do defendant's purchases of bleach and a turkey baster constitute compelling proof of planning activity, as any connection between those items and Sierra's murder is speculative. The Attorney General asserts that defendant committed the murder in a secluded area, and argues that fact shows premeditation and deliberation, but there was no evidence establishing where Sierra was killed.

There was also no evidence that defendant and Sierra knew each other or had any relationship from which a motive for the murder could be inferred. (The Attorney General suggests the murder was sexually motivated, without pointing to any specific evidence establishing that motive for premeditated murder.) And as the Attorney General acknowledges, there was no evidence establishing the manner in which Sierra was killed. Although the fact that Sierra's body was not found could circumstantially support a finding of premeditation and deliberation (suggesting the existence of a preexisting plan to dispose of the body), that inference is undermined by her belongings being found in the vicinity of her last known location. (Cf. People v. Hyde (1985)

166 Cal.App.3d 463, 477-478 [upholding jury's finding of premeditation and deliberation based on evidence of planning activity and motive, and where "the fact that [the victim's] body was never found circumstantially suggest[ed] a preconceived plan to dispose of the body"].) Even viewing the totality of the evidence in the light most favorable to the judgment, we find insufficient evidence to prove beyond a reasonable

24

25

doubt that defendant committed willful, deliberate, and premeditated murder. We will therefore bar the prosecution from relying on that theory if defendant is again tried for first degree murder. (See People v. Young (1987) 190 Cal.App.3d 248, 259.)

3. Effect of Senate Bill No. 1437

In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015, § 2), which amended sections 188 and 189 to "eliminate[] natural and probable consequences liability for murder as it applies to aiding and abetting, and [to] limit[] the scope of the felony-murder rule." (People v. Lewis (2021) 11 Cal.5th 952, 957.) That change in law added section 188, subdivision (a)(3) to provide that "in order to be convicted of murder, a principal in a crime shall act with malice aforethought" and

"[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) Section 189, subdivision (e) was also added to limit liability for felony murder. (Stats. 2018, ch. 1015, § 3.) Before the passage of Senate Bill No. 1437, any killing committed in the course of certain inherently dangerous felonies constituted first degree felony murder for which all participants in the underlying felony were strictly liable no matter their individual mental state. (People v. Cavitt (2004) 33 Cal.4th 187, 197.) Now, only the actual killer or an aider and abettor who was

"a major participant in the underlying felony and acted with reckless indifference to human life" is guilty of felony murder. (§ 189, subd. (e).) Section 1172.6 provides for retroactive relief and allows defendants convicted of murder under the previous law to challenge the validity of their convictions on direct appeal. (§ 1172.6, subd. (g).) In a supplemental opening brief, defendant challenges his murder conviction on the grounds that Senate Bill No. 1437 renders the evidence of his guilt insufficient. Defendant's argument rests on the premise that, assuming he was involved in Sierra's death, the presence of a third contributor in some of the DNA samples means he must have had an accomplice who could have been the actual killer. As we have described, some of the DNA samples contained mixtures of DNA from at least three people but that

25

26

does not mean someone else had to have participated in the crime. For example, a sample taken from a glove found in defendant's car contained DNA possibly originating from defendant, Sierra, and F.S. (whose DNA could have been on the glove for an unrelated reason). Similarly, the presence of additional male DNA in some of the samples has possible explanations not precluding a finding based on other evidence that defendant acted alone in kidnapping and murdering Sierra.

Defendant specifically focuses on his exclusion as a possible source of a sperm cell found on Sierra's jeans, but there was evidence from which the jury could have concluded the sperm did not come from an accomplice to the crime. A DNA expert who analyzed the jeans testified that the very small amount of sperm found was not indicative of recent ejaculation on the jeans. The expert also testified that sperm cells can be transferred onto clothing during laundering and can linger on clothing for weeks or even months after the clothing is washed.

Other evidence pointed to defendant as the sole perpetrator, notwithstanding possible ambiguities in the DNA evidence. There was evidence that defendant left his home alone at 7:00 a.m. on March 16, 2012, just minutes before Sierra would have been leaving her house for school, and that he visited a bank alone before returning home shortly before 1:00 p.m. When asked by investigators what he had done that morning, defendant said he had gone fishing alone. From those facts, viewed in conjunction with the DNA and other evidence connecting defendant to Sierra, a jury could reasonably conclude defendant was Sierra's actual killer and thus guilty of felony murder under current law.

4. Evidence of Kidnapping or Attempted Kidnapping

Defendant argues there was insufficient evidence that the murder occurred during the commission of a kidnapping or attempted kidnapping, undermining the jury's guilty verdict on first degree felony murder and its true finding on the kidnapping special circumstance. (See §§ 189, subd. (a), 190.2, subd. (a)(17)(B).) (We have already

26

27

addressed defendant's argument that there was insufficient evidence of his intent to kill and, by extension, the special circumstance under section 190.2, subdivision (a)(17)(M).) Kidnapping is the movement of a person by force or fear, without their consent, for a substantial distance. (People v. Bell (2009) 179 Cal.App.4th 428, 435.) Attempted kidnapping is a specific intent crime requiring "that the defendant act with a conscious design or purpose to accomplish … taking and carrying away the victim a substantial distance, by force or fear, and without consent." (People v. Fontenot (2019) 8 Cal.5th 57, 69.) It also "requires the defendant to purposefully inflict whatever degree of force or fear is required to overcome the victim's will" and cannot be committed by recklessness or negligence. (Ibid.) Defendant acknowledges the jury was instructed on both kidnapping and attempted kidnapping, but "submits only a completed kidnapping arguably applies on this evidence." Absent any explanation of why the evidence does not support attempted kidnapping, we reject defendant's conclusory assertion. (See Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066 ["When an appellant asserts a point but fails to support it with reasoned argument and citations to authority, we treat the point as forfeited."].)

We also reject defendant's challenge to the sufficiency of evidence of a completed kidnapping. There was evidence that Sierra intended to attend school on March 16 but went missing that morning in the vicinity of her bus stop. The jury could reasonably infer from defendant's admitted presence in the area around the same time, the presence of Sierra's DNA in defendant's car, and the lack of any preexisting relationship between them that Sierra got into defendant's car. The jury could also reasonably infer from the lack of a previous relationship, and the fact that Sierra's cell phone was found discarded near her bus stop, that Sierra did not enter defendant's car willingly but rather out of force or fear. (As the Attorney General notes, the fact that Sierra's jeans smelled of urine when found further supports for that inference.) As to the asportation element, the jury could find that Sierra was moved a "substantial distance" from the public area of her bus

27

28

stop into the confines of defendant's car and then to wherever defendant proceeded to drive her. (See People v. Singh (2019) 42 Cal.App.5th 175, 188; People v. Shadden (2001) 93 Cal.App.4th 164, 169; People v. Jones (1999) 75 Cal.App.4th 616, 629-630.)

B. SUFFICIENT EVIDENCE SUPPORTS THE VERDICTS ON COUNTS 2, 3, AND 4

Defendant contends the evidence was insufficient to support his convictions on counts 2, 3, and 4. The crime charged in all three counts was attempted kidnapping during the commission of a carjacking (§ 209.5), which requires "neither a completed kidnapping nor a completed carjacking" but "only a specific intent to facilitate the commission of the carjacking" and a direct but ineffectual act toward both the planned kidnapping and the planned carjacking. (People v. Medina (2007) 41 Cal.4th 685, 695.) Here again, we review the entire record in the light most favorable to the judgment. We find sufficient substantial evidence to support guilty verdicts on those counts.

1. Count 2

The incidents in counts 2 and 3 occurred close in time in the parking lots of Safeway stores within walking distance of each other. Both counts involved a man opening a car door (or attempting to) as a woman returned to her car alone after shopping at Safeway. In each incident the suspect was described as wearing a sweatshirt and dark clothing; appearing Hispanic or possibly Hispanic; in his twenties; and of similar height. A responding officer believed the incidents possibly involved the same person. Based on those facts, the jury could conclude counts 2 and 3 were parts of a common plan or scheme on the part of defendant (whose identity was sufficiently established in count 3 by a fingerprint and other evidence, as we will explain). As we will also explain, the jury could make the same finding with respect to count 4, and conclude that defendant harbored the same intent in all three instances: kidnapping the victim in order to effectuate a carjacking. The jury could also determine that, in approaching the car and attempting to open the door as the victim got inside, defendant took a direct but ineffectual step toward committing the crime.

28

29

2. Count 3

Defendant's fingerprint was found on a nine-volt Duracell battery inside the stun gun used and left behind in the count 3 attack. Earlier that day, a Safeway Club Card account belonging to defendant's sister had been used to buy two nine-volt Duracell batteries; defendant's sister testified that defendant had access to her account, she would not have typically bought nine-volt batteries, and she believed the purchase had been made by someone else. Those facts, together with the physical descriptions of the attacker provided by the victim and a bystander who witnessed the attack, were sufficient for the jury to conclude beyond a reasonable doubt that defendant was the attacker. The jury was not required to accept defendant's theory that his fingerprint could have ended up on the battery in the course of his employment at Safeway.

The jury could also have found that defendant intended to gain control of the victim's car and kidnap her. Immediately after putting her car key in the ignition, the victim was attacked from behind with a stun gun. She asked her attacker what he wanted, but he did not answer. Her purse was unprotected on the passenger seat but the attacker did not attempt to grab it, supporting an inference that his intent was not simply to rob her. The attacker fled on foot after a nearby car flashed its high beams, suggesting that he had not driven to the scene and providing further support for the inference that he intended to commandeer the victim's car. Those facts, especially when viewed in conjunction with the facts of counts 2 and 4, could reasonably lead to the conclusion that defendant intended to incapacitate the victim and drive the car a substantial distance to another location.

3. Count 4

The count 4 attack happened a week after counts 2 and 3, also at night, in the same Safeway parking lot as count 2, and on a date defendant was not working. After the victim parked her car, a man entered the backseat and attacked her. As in the count 3 attack, the man used one hand to hold the victim in place or press a weapon against her

29

30

neck while hitting her with his other hand. Also as in count 3, the man got out of the car and fled on foot when he ended the attack (this time when the victim stated that she was pregnant). The victim provided a physical description of her attacker matching defendant and the descriptions from counts 2 and 3. Sufficient similarities existed for the jury to find that defendant committed all three offenses in a common plan or scheme. Aspects of count 4 also support the conclusion that defendant acted with the intent to carjack and kidnap all three victims. Specifically, the abrupt manner in which the attack ended following the victim's statement that she was pregnant supports an inference that the attacker had intended to commit additional crimes against her but was dissuaded from doing so. As in count 3, the attacker's apparent lack of interest in the victim's easily accessible purse suggests he did not intend simply to rob her. And also as in count 3, the fact that he left the scene on foot suggests an intent to commit a carjacking.

C. CONSOLIDATION AND CROSS-ADMISSION OF CHARGES WAS PREJUDICIAL

Before trial, defendant moved to sever the trial on count 1 from the trial on counts 2, 3, and 4. The prosecution opposed the motion, arguing the charges were cross- admissible under Evidence Code sections 1101 and 1108. The trial court denied the motion in a written order reading: "The court has conducted the analysis most recently articulated by the California Supreme Court in [People v. Simon (2016) 1 Cal.5th 98 (Simon)]. Although there may be some potential prejudice to the charges remaining joined, the defendant has not made a clear showing of prejudice to support the granting of the Motion for Severance. The potential prejudice does not outweigh the benefits of joinder."

After the severance motion was denied, defendant moved to exclude evidence under Evidence Code sections 1101 and 1108. The trial court ruled that the murder charge and the three Safeway charges were cross-admissible as evidence of intent to kidnap and motive, but not as evidence of identity or of a common plan or scheme. The

30

31

court also ruled the charges were not cross-admissible under Evidence Code section 1108 as evidence of defendant's propensity to commit sexual offenses. The jury was instructed on permissible use of the evidence as follows: "Evidence presented as to Counts 1 through 4 may be considered for the purpose of deciding whether the defendant acted with the intent to kidnap, and/or whether the defendant had a motive to commit the offenses alleged in this case. You may consider the evidence presented in Counts 1 through 4 for this purpose only if the People have proved the acts beyond a reasonable doubt." With respect to the Safeway charges (counts 2, 3, and 4), the jury was instructed that it could also consider evidence presented as to those three counts to decide "whether the defendant had a plan or scheme to commit the offenses alleged in this case."

On appeal, defendant argues it was error for the trial court to deny his severance motion and find all four charges cross-admissible to show intent and motive.

1. Legal Standards

Where, as here, offenses in separate cases meet a statutory basis for consolidation (see § 954), a defendant bears the burden to "make a clear showing of prejudice to establish that the trial court abused its discretion" in consolidating the cases. (People v. Mendoza (2000) 24 Cal.4th 130, 160 (Mendoza).) In our review, we examine the record before the trial court when it denied defendant's severance motion and consider: "(1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case." (Id. at p. 161.)

31

32

2. Analysis

We first address the charges' cross-admissibility, because a finding of cross- admissibility generally negates the possibility of prejudice. (People v. Merriman (2014)

60 Cal.4th 1, 38.) "Evidence of other crimes can be admitted to prove the offender acted according to a certain plan, or acted with a particular motive, if a degree of similarity exists between the past and present crimes so as to permit a reasonable inference that the offender must have entertained the same intent in both instances." (People v. Jones (2013) 57 Cal.4th 899, 926.)

The California Supreme Court has explained that "there exists a hierarchy, or continuum, with respect to the degree of similarity that is needed for cross-admissibility, depending upon the purpose (see Evid. Code, § 1101, subd. (b)) for which introduction of the evidence is sought." (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1222.) "To be admissible to demonstrate a distinctive modus operandi, the evidence must disclose common marks or identifiers, that, considered singly or in combination, support a strong inference that the defendant committed the crimes." (People v. Maury (2003)

30 Cal.4th 342, 392.) "To be admissible to show intent, however, the prior conduct and the charged offense need only be sufficiently similar to support the inference that defendant probably harbored the same intent in each instance." (People v. Yeoman (2003) 31 Cal.4th 93, 121 (Yeoman).) To be cross-admissible to establish motive, the offenses need not necessarily be factually similar but must share "a direct logical nexus."

(People v. Demetrulias (2006) 39 Cal.4th 1, 15; see People v. Scheer (1998)

68 Cal.App.4th 1009, 1018 ["the motive for the charged crime arises simply from the commission of the prior offense"].)

The trial court correctly ruled that counts 2, 3, and 4 were cross-admissible as to each other to prove intent, motive, and the existence of a common plan or scheme. Those charged crimes were sufficiently similar to allow a reasonable inference that defendant committed them under a common plan or scheme and acted with the same intent in each

32

33

instance. All three incidents took place within the span of one week, at night, in Safeway parking lots in Morgan Hill. (Counts 2 and 3 took place roughly half an hour apart.) In each, a man targeted a woman who was alone in her car, and attempted to gain access to the car while she remained inside. In count 2, the man's attempt to enter the car was unsuccessful; but counts 3 and 4 feature additional similarities supporting cross- admissibility: in both of those incidents, after getting in the backseat of a woman's car, the man assaulted the woman from behind until he stopped in an apparent response to something he saw or heard, and then fled the area on foot. The jury could reasonably use that evidence for the purposes contemplated by the trial court in considering whether defendant was guilty of all three Safeway charges.

The charged murder bore much less resemblance to the three Safeway incidents which took place three years earlier. The prosecution's theory was that Sierra (a 15-year- old girl) was abducted by car sometime shortly after 7:00 a.m. as she walked to her bus stop on a public roadway in Morgan Hill. By contrast, the victims in the Safeway incidents were adult women of varying ages. They were each approached at night, in a store parking lot, while in a car, by a man apparently on foot. No direct logical connection between the Safeway incidents and Sierra's murder was alleged, such that commission of the earlier offenses does not imply a motive for the murder. (With respect to motive, the prosecutor argued primarily that all four offenses were sexually motivated, but the trial court correctly ruled that the charges were not cross-admissible as sexual offenses under Evidence Code section 1108. (Cf. People v. Davis (2009) 46 Cal.4th 539, 602-604 [prior crimes admissible to prove sexual motive where the "sexual nature of the prior crimes" was "obvious" and Davis "admitted to having sexual fantasies about assaulting and binding his prior female victims"].)) Nor were the murder and the Safeway charges "sufficiently similar to support the inference that defendant probably harbored the same intent in each instance." (Cf. Yeoman, supra, 31 Cal.4th at pp. 121- 122 [prior "use of a 'good Samaritan ploy' to rob and attempt to kidnap" a "stranded

33

34

female motorist" admissible to show Yeoman intended to rob the murder victim "when he stopped for her on the freeway"].)

Based on the foregoing, we conclude the charges were not cross-admissible as evidence of intent or motive. In reaching our conclusion we are mindful that defendant also vigorously disputed his identity as the perpetrator of all four offenses. Defendant asserts that dispute alone is sufficient to preclude cross-admissibility as to intent because his identity was not "conceded or assumed." (See People v. Ewoldt (1994) 7 Cal.4th 380, 394, fn. 2.) We disagree that evidence is never cross-admissible to prove intent where a defendant raises an identity defense; even in such cases, the prosecution must prove both that the defendant committed the act(s) at issue and that he acted with the requisite intent. (See People v. Earle (2009) 172 Cal.App.4th 372, 390-391 (Earle).) Nonetheless, disputed identity is a factor to be considered in weighing the probative value of allegedly cross-admissible evidence of intent against the likelihood of undue prejudice due to its admission. (Id. at p. 391; People v. King (2010) 183 Cal.App.4th 1281, 1301-1303; see People v. Thompson (1988) 45 Cal.3d 86, 109 ["to be admitted, evidence of other crimes must … not contravene other policies limiting admission, such as those contained in Evidence Code section 352"].) We find the factor further weighs against cross- admissibility.

Having determined that the charges were not properly cross-admissible, we next consider "whether some of the charges are likely to unusually inflame the jury against the defendant" and "whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges"

against defendant. (Mendoza, supra, 24 Cal.4th at p. 161.) (Although defendant was charged in count 1 with capital murder—another factor courts have considered in cases involving joinder issues—he does not suggest that is relevant to our analysis.) None of the four charges was particularly strong. Although forensic evidence linked defendant to Sierra as well as to the stun gun used in count 3, other evidence may

34

35

have limited the strength of the forensic evidence. Sierra's body was not found, raising a question as to the fact of her death, and no evidence clearly established how she died or how defendant had caused her death. None of the three Safeway victims positively identified defendant, and the three Safeway incidents were susceptible of multiple interpretations of the perpetrator's intent. The charged murder was inflammatory in that it alleged the abduction and killing of a 15-year-old girl, and the prosecution posited a sexual motive. (See Simon, supra, 1 Cal.5th at p. 124 ["courts have recognized that sex crimes can be quite inflammatory, especially when they involve young victims"].) The Safeway charges were in their own way arguably inflammatory, in that they involved attacks on vulnerable and unsuspecting victims, and the prosecution asserted a sexual motive there as well. Given that consolidation of four weak cases was likely to alter the outcome on some or all of the counts, we conclude the trial court abused its discretion in denying the severance motion.

The court's later evidentiary rulings also allowed evidence of all four charges to be improperly cross-admitted. The trial court instructed the jury that it could consider evidence of all four counts for the purpose of deciding whether defendant had an intent to kidnap and a motive to commit the charged crimes, even though the evidence was not properly cross-admissible for either purpose. The charged murder was not sufficiently similar to the Safeway incidents to convey that the perpetrators of each had the same intent, and no direct logical connection between the Safeway incidents and the murder three years later established a common motive. Considering the weaknesses in the evidence we have discussed, we conclude that the consolidated trial and the improper cross-admission of the charges prejudiced defendant.

The prosecutor's arguments at trial which encouraged the jury to consider the evidence cumulatively also contribute to our finding of prejudice. (See Earle, supra,

172 Cal.App.4th at p. 409 [prosecutor's "heavy and pervasive reliance" on evidence of prior crime is relevant to prejudice analysis].) At the beginning of closing argument, the

35

36

prosecutor stated that the Safeway incidents and the charged murder were "bookends" of a consistent course of conduct by defendant. The prosecutor later described the Safeway offenses as a "breeding ground" where defendant "learned" from his mistakes and

"trained" for his abduction and murder of Sierra three years later. At the close of argument the prosecutor again referred to the Safeway charges as defendant's "training ground" and asked the jury to find defendant guilty on all four counts. The prosecutor also repeatedly referenced defendant's alleged "need" to target vulnerable female victims, abduct them, and do "unspeakable things" to them. In doing so, the prosecutor

" 'repeatedly urged the jury to consider evidence of [defendant's] "modus operandi" to determine whether he was guilty of both [sets of] crimes.' " (Cf. Simon, supra, 1 Cal.5th at p. 130, citing Bean v. Calderon (9th Cir. 1988) 163 F.3d 1073, 1083 (Bean).) He also effectively encouraged the jury to consider evidence of the Safeway charges in determining whether defendant committed the acts of abducting and killing Sierra, notwithstanding the court's instruction that the jury could consider the cross-admissible evidence as to intent and motive only if the acts were independently proven beyond a reasonable doubt. The prosecutor's arguments made it "difficult not to view the evidence cumulatively." (Williams v. Superior Court (1984) 36 Cal.3d 441, 453.) Given the conduct of the consolidated trial, we find it "reasonably probable that the jury was influenced by the joinder in its verdict of guilt." (See Simon, supra,

1 Cal.5th at pp. 129-130.) As we have explained, the evidence of each individually charged crime was not overwhelming, and the prosecutor bolstered the case for guilt by encouraging the jury to view the evidence cumulatively. The prosecutor's line of argument may have been permissible if limited only to the Safeway charges, but not collectively to include the charged murder. Because the jury found defendant guilty as charged on all four counts, there is no " 'affirmative evidence of the jury's ability to assess the [incidents] separately.' " (Cf. Simon, supra, 1 Cal.5th at p. 131, citing Bean,

36

37

supra, 163 F.3d at p. 1083.) The trial of count 1 together with counts 2, 3, and 4 and the improper cross-admission of the charges constitute prejudicial errors requiring reversal.

D. WE NEED NOT DETERMINE ADMISSIBILITY OF THE DNA EVIDENCE

Defendant moved to exclude DNA evidence under People v. Kelly (1976)

17 Cal.3d 24. He argued there was no generally accepted method of interpreting results from complex DNA mixtures like those tested in this case, and the crime lab had not followed correct procedures in interpreting the results in this case. The prosecution opposed defendant's motion, and attached a declaration by a crime lab supervisor describing the lab's procedures and attesting that those procedures were followed in this case. In a reply filing, defendant challenged the crime lab supervisor's qualifications to offer an opinion as to whether the procedures used were generally accepted in the relevant scientific community.

Following briefing and argument, the trial court rejected defendant's argument that the interpretive methods used in this case were not generally accepted in the scientific community. Following an evidentiary hearing, the court also found that "the DNA analysis and testing in this case used generally accepted scientific principles."

Defendant contends the prosecution failed to meet its burden of establishing the admissibility of the DNA evidence. We need not determine whether the DNA evidence was properly admitted in light of our conclusion that defendant is entitled to a new trial on other grounds. Even if we were to decide that the DNA evidence should have been excluded and the remaining evidence would be insufficient to prove guilt beyond a reasonable doubt, retrial would nonetheless be permissible. (See People v. Navarro (2021) 12 Cal.5th 285, 311 ["Evidence erroneously admitted is properly considered in weighing the sufficiency of evidence to support a conviction, notwithstanding its erroneous admission"].) We are also mindful that any conclusion we might reach regarding the DNA evidence as of the time of trial would be of limited utility, as scientific attitudes toward the methods used in this case may have changed over the

37