People v. Cordova

• Decision Date: 26 October 2015
• Docket Number: No. S152737.,S152737.
• Citation: 62 Cal.4th 104
• Court: California Supreme Court
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph Seferino CORDOVA, Defendant and Appellant.

62 Cal.4th 104

The PEOPLE, Plaintiff and Respondent, v. Joseph Seferino CORDOVA, Defendant and Appellant.

No. S152737.

Supreme Court of California

Oct. 26, 2015.

***47 Glen Niemy, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Glenn R. Pruden, Donna M. Provenzano and J. Michael Chamberlain, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion

CHIN, J.

**524 A jury convicted defendant of the first degree murder of Cannie Bullock and found true the special circumstance allegations of murder while committing rape and murder while committing a lewd and lascivious act on a child under the age of 14. (Pen.Code, §§ 187, 190.2, subd. (a) (17)(C) and (E).)¹ After a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict (§ 190.4) and imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. The Facts

A. Guilt Phase

1. Overview

In 1979, eight-year-old Cannie Bullock's strangled and sexually abused body was ***48 found in the backyard of her home. Although investigators suspected a neighbor, William Flores, might have committed the crime, Flores was not charged, and the case was unsolved. A few years later, Flores committed suicide. In 1996, Flores's body was exhumed. Deoxyribonucleic acid (DNA) from his body was compared to evidence samples from the victim's body using recently developed methods of DNA analysis. The body's DNA did not match DNA from the evidence samples, and the case remained unsolved.

Finally, in 2002, a “cold hit” connected defendant, then living in Colorado, with the crime. Further testing established that sperm and semen found in the victim's body had come from defendant, and investigation revealed that, around the time of the crime, he had lived near the victim's home and had a sexual relationship with her mother. He was charged with the child's murder.

**525 At trial, defendant did not dispute that the sperm and semen in the body had come from him, but he proffered an innocent explanation for this circumstance, namely, that semen from sexual intercourse he had with the mother had transferred onto the child. He contended Flores committed the crime.

2. Prosecution Evidence

In August 1979, Cannie Bullock (Cannie) lived in a small house on Dover Street in San Pablo with her mother, Linda Bullock (Linda). The house had one bedroom and a sofa bed in the front room. Linda's friend, Debbie Fisher, was also staying in the house.² Fisher described Cannie as friendly toward persons she knew. The evening of Friday, August 24, 1979, between 11:00 and 11:30 p.m., Linda and Fisher went to Oscar's bar on 23rd Street in San Pablo, leaving Cannie alone in the house. When they left, Cannie was on the sofa bed watching television. She had just taken a bath and was wearing a bathrobe. Linda locked the front door and told Cannie not to open it for anyone.

Linda and Fisher returned to the house between 2:00 and 3:00 a.m. the next morning, with Fisher arriving sometime after Linda. Linda observed that the front gate was unlatched and the front door was unlocked. She could not find Cannie, but saw her bloody bathrobe on the front room floor. When Fisher arrived home, she heard Linda screaming that she could not find Cannie. The police later found Cannie's body in the backyard covered by a bedspread. It appeared it had been dragged there from someplace else. There was no sign of a forced entry into the house, and it appeared the front door had been unlocked from the inside.

Fisher observed a Sears sewing machine manual and a Sagittarius zodiac sign pendant on the coffee table in the front room; they had not been there previously. She gave them to the police.

Dr. George Bolduc performed the autopsy. In his opinion, the cause of death was “asphyxiation secondary to strangulation.” The child was most likely manually strangled. Dr. Bolduc also observed physical evidence that the victim had been sexually assaulted. Dr. Bolduc collected evidence samples from her vagina and rectum, including a “deep vaginal swab.”

During the initial investigation, the investigators considered a neighbor, William Flores, who showed a great interest in the case, to be a suspect, but they did not ***49 arrest him. Flores committed suicide in 1983. Neither Linda nor Fisher mentioned defendant to the investigators, and he was otherwise unknown to them. Present-day methods of DNA testing did not then exist, and the case was unsolved.

In 1996, investigators reopened the case in light of recent advances in DNA testing. They exhumed Flores's body to compare DNA taken from the body with DNA in evidence samples taken from the victim's body. Because the Contra Costa County crime laboratory did not perform DNA testing at the time, the samples were sent to Cellmark Diagnostics, a private company, to test. The samples did not match, meaning that Flores could not have been the source of the evidence samples.

Thus, the case remained unsolved. Later, investigators placed the DNA profile of the evidence samples into a national data bank. In 2002, investigators were informed that defendant, living in Colorado, might be connected to the case. The police reopened the investigation.

In July 2002, Detective Mike von Millanich interviewed defendant in Colorado. Pursuant to a court order, he also obtained a sample of defendant's blood for future testing. The videotaped interview was played to the jury. Defendant said that in 1979 he had been living in San Pablo and often went to bars on 23rd Street in San Pablo, including Oscar's bar. He left San Pablo to go to Canada in October 1979 and later moved to Colorado. He remembered Linda and Fisher, who used to live on Dover. He also “vaguely” remembered Linda's daughter. **526 When Detective von Millanich told him his DNA had been found in the daughter's body, he said, “I don't know how that can be.” He said that one Friday night, he picked Linda up at a bar and took her home and then “to bed.” He left her the next morning and did not see her again. He did not remember what Friday it was, but he did remember hearing about Linda's daughter's death on a Saturday or Sunday. He denied being the killer.

Later, at Detective von Millanich's request, a Colorado investigator interviewed defendant, and showed him a picture of the pendant found at the crime scene. The videotaped statement was later played for the jury. When shown the pendant, defendant said, “I've seen it before, yeah. Sagittarius.” But he denied owning or wearing a pendant like it. He said he did not wear jewelry or anything around his neck. He said he had seen pendants like it “in stores and stuff.” He reiterated that he had been at Linda's house and had sex with her one Friday night after meeting her at a bar. The daughter was in another room at the time. He saw the daughter the next morning before he went to work. When asked how his semen could have been found inside the daughter, he responded, “I imagine I left some on the sheets in the bed there.”

Linda testified that in 1979 she had sometimes had sex with male visitors, always in her bedroom. Cannie never came into the bedroom when she was having sex and never got into bed with her afterwards. Linda did not remember defendant. She testified, and had previously told the police, that she had not had sex the night Cannie died or the night before that. She further testified that no one had been to her house the week before the killing. Investigators testified that when they responded to the house the night of the killing, Linda's bed was neat and undisturbed.

Fisher testified that Linda had frequent male visitors, and that Cannie would typically meet them. “[T]hey would sit down before they'd go off into the bedroom and visit a few minutes.” Linda never used the sofa bed. If Fisher was home when ***50 Linda brought a male visitor home, she and Cannie “would get on our bicycles and take off, ride around.” Fisher also testified that she had met defendant at Linda's house a “couple” of times. Linda and defendant entered the back bedroom together. Cannie had also met defendant.

A former San Pablo police officer testified that in the 1970's he sometimes saw defendant “in some of the local drinking establishments in San Pablo.”

Cynthia Sumundal Born, who had a substantial criminal record and was facing criminal charges at the time of trial, testified that Linda and defendant “hung out quite a bit together” at a local bar. In the late 1970's, defendant wore the pendant found at the crime scene “around his neck all the time.” Defendant's sister, Vicki Cordova, testified that she had never seen the pendant. Previously, she had told an investigator that she remembered defendant wearing something around his neck, although she could not remember what it was.

Beginning in 2002, the evidence samples taken from the victim's body, including the deep vaginal swab and a rectal swab, were tested several times by both the Contra Costa County crime laboratory and Forensic Science Associates, a private company in Richmond. The nonsperm component of the samples matched the victim's DNA. DNA from sperm in the samples matched DNA from defendant's blood.

Criminalist David Stockwell of the Contra Costa County crime laboratory testified that his testing established the DNA profile of the sperm in the evidence samples would occur among unrelated individuals in about one in 3.1 quintillion African–Americans, one in 670 quadrillion Caucasians, and one in 3.6 quintillion Hispanics. A quintillion is a billion billions; a quadrillion is a million billions. These numbers are “[s]omewhere between a million—and a billion-fold beyond” the number of people on Earth. Based on these figures, Stockwell testified that, assuming a population of unrelated individuals, in his opinion and “to a reasonable scientific...