People v. Burks

• Decision Date: 07 August 1995
• Docket Number: No. D021036,D021036
• Citation: 43 Cal.Rptr.2d 791,37 Cal.App.4th 652
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 37 Cal.App.4th 652, 41 Cal.App.4th 1754, 46 Cal.App.4th 700, 51 Cal.App.4th 180 37 Cal.App.4th 652, 41 Cal.App.4th 1754, 46 Cal.App.4th 700, 51 Cal.App.4th 180, 95 Cal. Daily Op. Serv. 6263, 95 Daily Journal D.A.R. 10,641 The PEOPLE, Plaintiff and Respondent, v. Melvin William BURKS, Defendant and Appellant.

Page 791

43 Cal.Rptr.2d 791

Previously published at 37 Cal.App.4th 652, 41 Cal.App.4th 1754, 46 Cal.App.4th 700, 51 Cal.App.4th 180

37 Cal.App.4th 652, 41 Cal.App.4th 1754, 46 Cal.App.4th 700,

51 Cal.App.4th 180, 95 Cal. Daily Op. Serv. 6263,

95 Daily Journal D.A.R. 10,641

The PEOPLE, Plaintiff and Respondent, v. Melvin William BURKS, Defendant and Appellant.

No. D021036.

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

Aug. 7, 1995.

As Modified on Denial of Rehearing Sept. 6, 1995.

Review Granted Nov. 16, 1995.

Review Dismissed and Cause is Remanded to the Court of Appeal August 12, 1998.

Melvin William Burks, in pro. per., and Martin Nebrida Buchanan, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Gary W. Schons, Asst. Atty. Gen., Holly D. Wilkens and Frederick R. Millar, Jr., Deputy Attys. Gen., for plaintiff and respondent.

KREMER, Presiding Justice.

Defendant Melvin William Burks appeals his jury-tried convictions of two counts of kidnapping victims Phyllis M. and Ofelia M. to commit robbery (PEN.CODE, § 209¹, subd. (b)); torture of Phyllis (§ 206); forcible penetration of Phyllis's genital opening with a foreign object enhanced for kidnapping (§§ 289, subd. (a), 667.8, subd. (a)); two counts of robbery (§ 211); two counts of sexual battery by restraint (§ 243.4, subd. (a)); willful, deliberate and premeditated attempted murder of Phyllis (§§ 664, 187, subd. (a), 189); forcible oral copulation of Ofelia enhanced for kidnapping (§§ 288a, subd. (c), 667.8, subd. (a)); and forcible rape of Ofelia enhanced for kidnapping (§§ 261, subd. (a)(2), 667.8, subd. (a)). The jury found Burks inflicted great bodily injury on Phyllis in the crimes of kidnapping for robbery, forcible penetration with a foreign object, robbery, sexual battery, and attempted murder. (§§ 12022.7, 12022.8.) The jury also found victim Phyllis was age 65 or older when Burks committed the crimes of kidnapping Phyllis for robbery and robbing her. (§ 667.9.) Burks admitted a prior conviction of forcible rape (former § 261, subd. (3) in effect in 1976; § 667.9), a prior prison term (§ 667.5, subd. (b)), two prior sexual assault convictions (§ 667.6, subd. (a)), and three prior serious felony convictions (§ 667, subd. (a)).

Burks contends the superior court erred in admitting DNA evidence. Burks also attacks his convictions on various counts as lacking substantial evidentiary support. Burks further asserts the court miscalculated his custody credits. We modify the award of custody credits. We affirm the judgment as modified.

I FACTS

About 5:50 a.m. on September 9, 1992, Burks attacked nurse's assistant Ofelia as she walked from her parked car to work at a National City health center. Burks put a stocking cap over Ofelia's face and choked her neck with his hands. When Ofelia screamed, Burks threatened to kill her if she screamed. Burks dragged and pushed Ofelia to an area with bushes and trees, over a wall, and down a slope where she fell onto a big pipe in a rocky area about 223 feet from the location where he first grabbed her. Burks forcibly removed Ofelia's clothes, tied her hands together, slapped her face, put his mouth on her breast, orally copulated her vagina, and raped her. Burks then told Ofelia to leave. Ofelia lost her watch, earrings, purse and wallet during the attack. A criminalist found semen on Ofelia's clothing.

About 8 a.m. on December 29, 1992, Burks attacked 84-year-old Phyllis as she stood outside a National City church less than a quarter mile from the area where he had attacked Ofelia. Choking Phyllis with his arm around her neck, Burks dragged and carried her to a spot about 261 feet away. When Phyllis prayed, Burks told her to shut up or he would kill her. Grabbing Phyllis's head by the hair, Burks repeatedly slammed her head and body against the cement, pounded his fists against her pelvic area, taped her eyes so she could not see, removed her clothing, put his mouth on her breast, digitally penetrated her vagina, and covered her head with her scarf. Burks also removed his own clothing. Phyllis felt a force on her chest "crushing the life" out of her and so "terrible" she could hardly breathe. Burks wrapped tape around Phyllis's neck, suffocating her until the tape broke. During the attack Phyllis felt in the area of Burks's testicles a fluid she believed to be semen. After Phyllis struggled to remove the scarf from her face, Burks left. Phyllis suffered a concussion, brain contusions, a perforated eardrum, bumps on her head and chest, scrapes, bruises, and vaginal tears. Phyllis also lost her eyeglasses, scarf and watch during the attack. Criminalists found semen on the concrete at the crime scene, on Phyllis's clothing and on swabs of her vaginal area.

Using the Restriction Fragment Length Polymorphism (RFLP) method, Cellmark Diagnostics's laboratory analyzed Burks's DNA and the DNA of the semen found on Ofelia and Phyllis. The DNA analysis revealed a match between Burks and the semen found on his victims. ²

II SUPERIOR COURT PROCEEDINGS

In January 1994 the matter came for jury trial. Burks brought an in limine motion to exclude evidence of the DNA analysis. Citing People v. Barney, supra, 8 Cal.App.4th 798, 10 Cal.Rptr.2d 731, Burks contended the scientific community did not generally accept the RFLP method used to show the DNA of the semen found on the crime victims matched his. Among his specific assertions, Burks claimed the scientific community did not generally accept the statistical calculation step of the RFLP method employed to determine the probability the semen found on the victims was his.

After a Kelly ³ hearing, the superior court denied Burks's motion to exclude the DNA evidence. At trial Cellmark's director testified the match between Burks's DNA and the DNA in the semen found on the victims would occur randomly in about 1 out of 1.3 million persons. Other incriminating evidence at trial included Phyllis's identification of Burks as her attacker, testimony of witnesses who saw Burks near the crime scene, testimony about Burks's conduct after the crimes, and hair found at the scene.

Burks was convicted as charged on all counts and allegations submitted to the jury. The court sentenced Burks to three consecutive life terms (for attempted murder and two kidnappings for robbery) plus a determinate term of 56 years.

Burks appeals.

III DISCUSSION

A DNA EVIDENCE

The superior court found the scientific community generally accepted the processing and matching steps of the RFLP analysis of DNA. (People v. Barney, supra, 8 Cal.App.4th at p. 811, 10 Cal.Rptr.2d 731; People v. Axell, supra, 235 Cal.App.3d at p. 868, 1 Cal.Rptr.2d 411.) On the issue of the statistical method used to determine the probability the semen samples found on the crime victims came from Burks, the court after a Kelly hearing found the scientific community generally accepted the "modified ceiling" approach employed here as recommended by the National Research Council (NRC, DNA Technology in Forensic Science (1992)--the "NRC report").

The NRC report "proposes a method of statistical calculation which accounts for the possibility of population substructuring, eliminates ethnicity as a factor in the calculation process, and permits the use of the product rule while ensuring that probability estimates are appropriately conservative. The report proposes a 'ceiling frequency' approach, in which DNA samples from 15 to 20 homogeneous populations will be analyzed for allele frequencies. In subsequent analysis of the DNA of a suspect or crime scene sample, each allele will be assigned the highest frequency that appears in the tested populations, or 5 percent, whichever is greater. These frequencies will then be multiplied together using the product rule. [Citation.] [p] Until the ceiling approach is in place, the report proposes that the following interim methods should be used to report frequencies. (1) Using a 'counting principle' approach, the frequency of a DNA pattern (e.g. zero) in an existing data base should be reported. (2) Using a modified ceiling approach, each allele should be assigned a frequency of either the 95 percent 'upper confidence limit' for its frequency in existing data bases (wherein the true frequency has only a 5 percent chance of variance), or 10 percent, whichever is larger, and a statistical calculation should then be made using the product rule. [Citation.]" (People v. Barney, supra, 8 Cal.App.4th at pp. 821-822, 10 Cal.Rptr.2d 731.) ⁴

Burks contends the superior court erred in admitting evidence of the DNA analysis. Burks concedes courts have found the scientific community generally accepts the processing and matching steps of RFLP analysis of DNA. (People v. Barney, supra, 8 Cal.App.4th at pp. 811-814, 10 Cal.Rptr.2d 731; People v. Axell, supra, 235 Cal.App.3d at pp. 857-863, 1 Cal.Rptr.2d 411.) However, Burks asserts the scientific community does not generally accept the "modified ceiling" approach used here in determining the statistical probability the semen found on the victims was his. We conclude the superior court properly admitted evidence of the DNA analysis.

KELLY EVIDENTIARY ADMISSIBILITY REQUIREMENTS

"In order to introduce evidence of a new scientific technique the proponent of the evidence must make a three-part showing: (1) the technique or method is sufficiently established to have gained general acceptance in the appropriate scientific community; (2) testimony about the technique and its application is offered by a qualified expert; (3) correct scientific procedures were followed in administration of the technique or method in the particular case. (People v. Morris (1991) 53 Cal.3d 152, 206, 279 Cal.Rptr. 720, 807 P.2d 949; People v. Kelly, supra, 17 Cal.3d at p. 30, 130 Cal.Rptr. 144, 549 P.2d 1240.)" (People v. Taylor (1995) 33 Cal.App.4th 262, 265, 40...