People v. Jacobs

1

THE PEOPLE, Plaintiff and Respondent, v. EDWARD JACOBS, Defendant and Appellant.

B316230

California Court of Appeals, Second District, Eighth Division

February 7, 2024

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. NA113062 Judith L. Meyer, Judge. Affirmed.

Marilee Marshall, under appointment by the Court of Appeal for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan S. Pithey, Assistant Attorney General, Michael C. Keller and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

VIRAMONTES, J.

INTRODUCTION

Edward Jacobs appeals from his judgment of conviction for count 1 the first degree murder of Guy Alford (Pen. Code,^[1] § 187, subd. (a)), and count 2, possession of a firearm by a felon (§ 29800, subd. (a)).

First, Jacobs argues the trial court erred by failing to conduct a hearing pursuant to People v. Kelly (1976) 17 Cal.3d 24 (Kelly) before admitting DNA evidence that was analyzed using STRmix, a software program that uses probabilistic genotyping to aid in the interpretation and evaluation of forensic evidence that contains a mixture of DNA from multiple contributors. We conclude the trial court did not err by failing to hold a Kelly hearing, because the STRmix method of DNA analysis is generally accepted by the relevant scientific community as held in People v. Davis (2022) 75 Cal.App.5th 694 (Davis).

Second, Jacobs argues there was insufficient evidence to support the jury's robbery-murder special-circumstance finding. We disagree as there was evidence Jacobs intended to rob Alford before the shooting.

Third, Jacobs argues the trial court erred when it denied his request to stay his sentence for his conviction in count 2 under section 654, because his possession of the firearm and the shooting were part of the same indivisible course of conduct. Again, we disagree as there was sufficient evidence Jacobs arrived at the scene with the handgun used to shoot Alford, and there was no evidence that fortuitous circumstances put the firearm in Jacobs's hand only at the instant of committing the murder.

Last, Jacobs has requested an independent review of the trial court's hearing under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Prosecution Evidence

A. The shooting

On September 26, 2018, Javontae Sorrells, Darrell Woodall, Bamm Thompson, Zatrail Greenhill, and Alford drove to a Jack in the Box on Atlantic Avenue and 52nd Street in Long Beach. Alford was driving, Thompson was in the front passenger seat, Greenhill sat in the back seat behind Thompson, Woodall sat in the back seat behind Alford, and Sorrells sat between Greenhill and Woodall.

The following description of the shooting and subsequent events is based on Alford's passengers' testimony and interviews, as well as footage captured by surveillance cameras in the Jack in the Box drive-thru and an adjacent business.

Alford pulls into the drive-thru and stops at the menu so Alford and his passengers can order. A black car then pulls into the drive-thru behind Alford. A man wearing a ski mask then exits the black car, which starts to back out of the drive-thru. As the man approaches Alford's driver-side window, two other individuals exit the black car and walk towards Alford's car. When the man who first exited the black car reaches Alford's driver-side window, he points a gun into Alford's car and says something like "gimme" or "give me the car." Alford and the man struggle over the gun, and the man fires four or five shots into Alford's car. The man then runs back to the black car and gets in along with the other two individuals. At the same time, Sorrells, Woodall, Thompson, and Greenhill can be seen quickly exiting Alford's car and then running in different directions. Alford's vehicle then rolls forward slightly and then rolls backwards out of the drive-thru, striking a parked car.

After several minutes, Greenhill and Thompson return to Alford's car to get their backpacks from the trunk. Thompson tries to assist Alford, but finds him nonresponsive and not breathing. Greenhill and Thompson then open the driver-side door to pull the trunk latch to access the trunk. Greenhill and Thompson then leave the scene.

B. Law Enforcement Investigation

1. The crime scene

Law enforcement responded to the scene. Officers recovered cartridge casings from the driver-side floorboard and windowsill, as well as in the front driver seat after Alford's body was removed. They also recovered a watch next to the drive-thru intercom where the shooting took place.

Officers obtained the surveillance videos from the Jack in the Box and an adjacent business, which were played for the jury.

Investigators from the Los Angeles County Department of Examiner-Coroner's office determined Alford suffered a fatal gunshot wound to the left side of his neck, and suffered additional gunshot wounds to his torso and right leg.

Firearms evidence showed the cartridge casings were fired from the same gun.

2. DNA evidence

A forensic specialist processed the crime scene, photographing the drive-thru and surrounding area, as well as collecting DNA swabs from the watch found by the intercom, Alford's hands, and the interior panel and exterior of Alford's driver-side door.

A criminalist tested the swabs for DNA. She explained DNA testing consists of four steps: extraction, quantitation, amplification, profiling using a genetic analyzer, and interpretation. Extraction involves purifying the DNA by separating the DNA from collected cells. Quantitation involves determining how much DNA is in a particular sample, which is critical to testing because if there is not enough DNA, the criminalist will be unable to create a DNA profile for comparison. Amplification involves making millions of copies of those locations on the DNA samples that are unique to each individual. Then, to create a profile for interpretation, the criminalist separates out the amplified fragments of DNA and enters them into a genetic analyzer for comparison.

To assist in the interpretation of the DNA profile, the criminalist uses STRmix, a software program that helps interpret a DNA sample that contains a mixture of DNA from multiple contributors. STRmix uses probabilities to come up with an expected profile from the observed profile expressed in the form of a "likelihood ratio." The likelihood ratio is a statistical measure of the probability that certain individuals contributed to a mixed-source DNA sample against the probability that other, unrelated individuals were the contributors. In other words, it expresses the weight of the observed profile in two mutually exclusive hypotheses, i.e., the probability that the evidence originated from the suspect in the case versus the probability that the evidence originated from an unknown and unrelated individual.

Here, the criminalist determined the watch found at the scene had a total of four contributors. Jacobs's profile was included in the mixture and most aligned with the 80 percent contributor. The likelihood ratio of the DNA profile from the watch was approximately three times 10 to the 30th power more likely if it originated from Jacobs and three unknown individuals, than if it originated from four unknown individuals.

Alford's left hand fingernails sample had a mixture of four contributors. Jacobs's profile was included and most aligned with the five percent contributor. Alford's profile was most aligned with the 84 percent contributor. The likelihood ratio was "approximately 312 and 93 times more likely" that it originated from Alford, Jacobs, and two unknown individuals than if it originated from Alford and three unknown, unrelated individuals.

The interior door panel sample had a mixture of four contributors, including Alford. Jacobs's profile was included and most aligned with the 8 percent contributor. Alford's profile aligned with the 67 percent contributor. The likelihood ratio was approximately nine million times more likely if it originated from Alford, Jacobs, and two unknown individuals than if it originated from Alford and three unknown, unrelated individuals.

The exterior door sample had a mixture of four contributors. Jacobs's profile was included and aligned with the 20 percent contributor. The likelihood ratio was approximately 4,180 times more likely that it originated from Jacobs and three unknown individuals than if it originated from four unknown individuals.

II. Defense Evidence

Defense counsel called Thompson to testify. Thompson said Alford picked him and the other passengers up approximately an hour and a half before the shooting. Thompson testified their plan was to smoke weed, eat, and then go home. They drove to a Jack in the Box near Thompson's house and entered the drive-thru. Thompson said the passengers were taking their time ordering, and that Thompson was the only person who got his order out. As he was ordering, Thompson saw a man walk up to the driver side of the car and put a gun in the car and start shooting. Thompson saw Alford and the gunman struggle for the gun before he heard the gunshots. Thompson did not hear the gunman say anything before shooting. Immediately after the shooting, Thompson fled, but then returned to Alford's car approximately three to four minutes later to check on Alford and to retrieve his things.

III. Jury Verdict and Sentencing

The jury found Jacobs guilty of count 1, first degree murder (§ 187, subd. (a)) and count 2, possession of firearm by a felon (§ 29800, subd. (a)(1)). It also found true the robbery-murder special-circumstance and that Jacobs personally...