People v. Givens

Page 816

61 Cal.Rptr.2d 816

Previously published at 53 Cal.App.4th 554

53 Cal.App.4th 554, 97 Cal. Daily Op. Serv. 1945,

97 Daily Journal D.A.R. 3538

The PEOPLE, Plaintiff and Respondent, v. Harold GIVENS, Defendant and Appellant.

No. A073821.

Court of Appeal, First District, Division 1, California.

March 14, 1997.

Certified for Partial Publication. ^*

Review Granted May 28, 1997.

Landra E. Rosenthal, First District Appellate Project, for Appellant/Defendant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Ronald S. Matthias, Supervising Deputy Attorney General, David D. Salmon, Deputy Attorney General, for Respondent/Plaintiff.

DOSSEE, Associate Justice.

Harold Givens appeals from his conviction of rape (Pen.Code, § 261), forcible oral copulation (§ 288a, subd. (c)), and burglary (§ 459). ¹ The principal issue raised on appeal concerns the admissibility of evidence purporting to quantify DNA test results using a statistical estimate of probability we shall refer to as the "unmodified product rule." ² We hold that this use of the unmodified product rule is generally accepted in the relevant scientific community, and, except for a modification of the sentence, affirm.

BACKGROUND

Appellant was charged with four counts of burglary, four counts of rape, and one count of forcible oral copulation between January of 1991 and March of 1992. Prior to the trial, the court held a hearing pursuant to Evidence Code section 402 to determine the admissibility of the results of deoxyribonucleic acid (DNA) testing. The DNA evidence was used at a jury trial which concluded on December 15, 1995. The jury found appellant guilty of all charges.

The Crimes

The case arises out of the rape of four women in Oakland and Berkeley in 1991-1992. Each woman was acquainted with appellant. Each rape was preceded by a burglary. Police investigating the rapes noted the common elements of a break-in by a man wearing a ski mask and gloves. Eventually, police obtained a warrant and searched appellant's person and home. In addition to samples of appellant's blood, hair and saliva, police obtained a pair of tennis shoes, a pry bar, a ski mask, a dark blue knit sweatshirt, and a pair of gray "Ben-Davis" type work pants. A summary of the evidence pertaining to each victim follows.

Deborah C.

Deborah C. was the mother of appellant's girlfriend. In the early morning hours of January 30, 1991, she was awakened by the sound of someone entering her house with a key. She went into the hallway and encountered an intruder wearing a ski mask and gloves. He lunged at her, overpowered her, and raped her. Afterwards, he asked her for money, but she told him she had none.

After the intruder left, Deborah C. went to the home of her friend. The friend testified that Deborah C. told her that the rapist was her daughter's friend. Later, when Deborah C. returned from the police station and hospital, she repeated that appellant was the rapist. At trial, she identified appellant as the intruder, although she had not been sure of her identification at the preliminary hearing.

An emergency room physician took tissue samples, fluid samples, and vaginal swabs from Deborah C., using a standard evidence collection kit. A police evidence technician took a sheet and the victim's panties to the police department property room. Semen was found on the vaginal swab. Using the Polymerase Chain Reaction (PCR) technique of preparing the DNA evidence, Charles Alan Keel, a forensic scientist for the Oakland police, was able to classify the DNA as type 1.1,3, which was consistent with appellant's DNA type. This classification eliminated 97 percent of the population as potential donors of that semen.

The evidence was sent to the FBI laboratory in Virginia for more discriminating DNA testing. The FBI lab conducted Restriction Fragment Length Polymorphism (RFLP) tests on the evidence. The DNA from the vaginal swabs matched appellant's DNA. After performing statistical probability calculations, the FBI reported that the probability of selecting an individual from the African-American population with the same DNA profile as appellant was 1 in 500 million.

Bonnita H.

Bonnita H. knew appellant as the boyfriend of her daughter's roommate. On April 8, 1991, she was awakened by a man straddling her in her bed. He was wearing gloves and a ski mask, and holding something sharp in his hand. The intruder raped her, then orally copulated her. He allowed her to go to the bathroom, where she grabbed a large towel and placed it between her legs. He made a comment about her going to church the previous day and said that he had followed her. He told her he entered her apartment with a key. He looked through her purse for money, but found none.

After the assailant left, Bonnita H. waited until dawn to go to the nearest telephone to call the police. The police found a previously lost key on the front steps. Bonnita described the man as an African-American man in his mid-20's, about 5 feet, 9 inches, and 170 pounds. She said he was wearing a dark ski mask, gray pants, a dark sweater, and dark wool gloves. She could not positively identify appellant at trial because the assailant had been wearing a mask. When police showed her a photo line up, she recognized appellant, but stated that he did not match the description of her assailant.

An emergency room physician collected vaginal, rectal, and oral specimens using a standard evidence collection kit. A police evidence technician collected the towel used after the rape. Sperm and epithelial cells, which compose the lining of the mouth and vagina, were found on the ski mask taken from appellant's home. Sperm was found on the vaginal swabs and the towel. PCR testing on the cells taken from the mouth area of the ski mask established a mixture of type 1.1,3 cells and type l.3,4 cells. Bonnita H., was a type 1.3,4, while appellant was a type 1.1,3. PCR testing on the vaginal swabs determined that the semen donor was type 1.1,3, consistent with appellant's DNA type. This type is present in only 3 percent of the population.

Cuttings from the towel were sent to the Cellmark lab for RFLP testing. The small amount of DNA available from the towel for testing limited the information available from that item. Testing determined that the DNA from the towel was consistent with the pattern of appellant's DNA, and that it could be expected to occur in 1 out of every 30 African-Americans. The report also gave estimates for how often this type would be found in Caucasians and Hispanics.

The FBI performed RFLP testing of cells from the mouth area of the ski mask seized from appellant's home and determined that the DNA of the cells matched the DNA type of Bonnita H. The probability of randomly selecting an individual from the African-American population with the same DNA profile as Bonnita H. was 1 out of 13,000 individuals. The lack of a finding of semen, as had been detected in the PCR testing was explained as being a result of the small amount of material available for testing. Semen from the vaginal swabs was consistent with appellant's type, and the probability of randomly selecting an unrelated individual with the same DNA profile was one in 7,000. Semen collected from the towel matched appellant's DNA, but with the small amount of information available, yielded a random probability of one in 140. ³

Lisa M.

Appellant's home was on the corner of the street where Lisa M. lived. Lisa M. had testified at the preliminary hearing, but refused to testify at trial. Keisha Rollins, a friend who lived in the same building as Lisa, testified about a conversation shortly after the rape. Rollins also knew appellant because her aunt was married to a relative of appellant's. On December 17, 1991, Lisa M. called Rollins, sounding very frightened. Rollins went down to Lisa M.'s apartment and found her crying and upset. Rollins called 911, and Lisa M. told her someone had broken in and raped her. Lisa M. was taken to a hospital and examined. Within three days of the rape, Lisa M. told Rollins that appellant was the one who raped her. Police showed Lisa M. a photo lineup containing appellant's picture in January of 1992. She identified the photo of appellant as the man who lived on the corner and said he fit the general description of her assailant.

A police evidence technician collected Lisa M.'s torn clothing, her robe and the sheets. The technician found a tire propped under one window and pry marks on the window. Semen was found on vaginal swabs taken from Lisa M., as well as on the robe and bed sheet. PCR testing classified the DNA as type 1.1,3, the same type as appellant.

RFLP testing at Cellmark labs showed that the DNA type on the sheet was consistent with appellant, and had a probability of occurring in 1 out of every 1.2 million African-Americans. The FBI testing of the material from the vaginal swab showed a match to appellant's DNA type, and a random probability of less than 1 in 500 million.

Lanita M.

Lanita M. was the daughter of Bonnita H., and the roommate of appellant's girlfriend. On March 30, 1992, she was at home with her five-week-old daughter and three-year-old son. She awakened sometime after 2 a.m. to find a man sitting on her bed with his hand over her mouth. He was wearing gloves and a dark mask with holes for the eyes and mouth. He threatened to kill her and the children if she screamed. The assailant took her downstairs and raped her. He asked her for money, but found none. After he left, Lanita called the police.

Although she could not positively identify appellant, she stated that her assailant was African-American, was wearing the same type of clothing that appellant usually wore, and was the same size and build. The clothing included Ben Davis pants, a jacket like appellant would wear, and white Converse shoes. Police found a shoe print on...