People v. Johnson, F046939.

CourtCalifornia Court of Appeals
Citation43 Cal.Rptr.3d 587,139 Cal.App.4th 1135
Decision Date25 May 2006
Docket NumberNo. F046939.,F046939.
PartiesThe PEOPLE, Plaintiff and Respondent, v. Michael JOHNSON, Defendant and Appellant.


Appellant Michael Johnson stands convicted, following a jury trial, of two counts of forcible oral copulation (Pen.Code,1 § 288a, subd. (c)(2); counts 1-2) and one count of forcible rape (§ 261, subd. (a)(2); count 3), all of which involved kidnapping the victim for purpose of committing the sexual offense (§ 667.8, subd. (a)) and the use of a knife in commission of the offense (§ 12022.3, subd. (a)). Following a bifurcated court trial, appellant was further found to be a habitual sex offender (§ 667.71); to have committed sexual offenses under aggravated circumstances (§ 667.61, subds.(a), (d)); to have suffered three prior serious felony convictions (§ 667, subd. (a)(1)) that were also strikes (§ 1170.12); and to have served two prior prison terms (§ 667.5, subd. (b)). In addition, the court found that the statute of limitations had been extended (§ 803, subd. (i) [see now, subd. (g)]). Appellant was sentenced to determinate and indeterminate terms that totaled 256 years to life in prison.

On appeal, appellant challenges admission of DNA evidence and various portions of his sentence. In the published portion of this opinion, we hold that a "cold hit" from a DNA database is not subject to the Kelly-Frye2 standard of admissibility, at least when, as here, it is used merely to identify a possible suspect. We further hold that there was no unlawful search or seizure. In the unpublished portion of our opinion, we reverse the findings under sections 667.61, subdivision (d)(1) and 667.71, and remand the matter for further proceedings.


Around 9:45 p.m. on February 18, 1996, 15-year-old G.N. was abducted at knife-point while using a pay telephone to talk to her boyfriend. Her assailant threatened to stab her if she said anything, then walked her to a pickup truck and had her crouch down on the floorboard while he drove her to a rural area. When she tried to raise up to see where they were going, he struck her on the head and threatened to stab her. Once they reached their destination, which G.N. believed was a field, the man had her orally copulate him. They then got out of the truck, and the man had G.N. remove her clothes and orally copulate him again. He had her lie on the seat of the truck, then he masturbated, got on top of her and pulled her legs apart, and raped her. He then asked G.N. how old she was. When she replied that she was 15, he got off of her and said he had a daughter her age and would not like something like this to happen to his daughter. G.N. then put her clothes back on and again sat on the floorboard of the truck. The man dropped her off back in town, and told her that she was lucky she bumped into him and not someone else who could have killed her. He spoke to her in a mixture of English and Spanish.

G.N. ran to her boyfriend's house. She was yelling and crying that somebody raped her. Her boyfriend summoned the police and an ambulance. A sexual assault examination was performed on G.N. around 12:30 the next morning. There was a swollen, bruised area above her left eye, and another swollen area on the side of her head, above the ear. There were no external genital injuries, but there was dirt on the vagina, and a loose hair and white liquid were found inside the vaginal vault. The physical findings were consistent with the history given by G.N.

G.N. described her assailant and the truck to Officer Willmore while she was still at the hospital. She described the truck as a '70s or older Ford short-bed, red or maroon in color, and in poor condition. She said it ran loudly, was stock height, had wind wing windows and a red interior, and had a manual transmission with the shift on the steering column. She also said there was a red rag or object tied around the steering column, and that the truck had a steel dashboard that was missing several pieces, including the radio and some knobs. She described her assailant as a Hispanic male, approximately 30 to 40 years old, six feet tall, 175 to 195 pounds, with brown eyes, and with short, black, slicked-back hair and a Fumanchu mustache. She also described what he was wearing, and said he had numerous tattoos on his right arm, from the wrist all the way through the elbow, and possibly a tattoo of a web with something caught inside, on his inner left forearm.

The next day, Willmore had G.N. view a pickup, which she positively identified as that driven by her assailant. The truck, a 1969 Ford Ranger with a missing radio, was seized and impounded, but was subsequently released to its owner because he did not match the description of the suspect.3 The police also showed G.N. 576 photographs of possible suspects, but she was unable to identify anyone.4

In September 1996, the case was inactivated because there were no new leads. On June 12, 2001, the sexual assault examination kit taken from G.N. was submitted to the Department of Justice Regional Laboratory. In November of that year, Criminalist Kay Strohl examined the evidence and detected sperm cells on one of the vaginal smear slides. This evidence, along with a reference blood sample from G.N., was then sent to the Department of Justice DNA Laboratory for further testing.

Department of Justice Senior Criminalist Maosheng Ma analyzed the evidence for DNA. She performed a differential extraction on one of the vaginal swabs, to separate the sperm cells from the victim's cells. She then amplified the DNA and obtained a DNA profile using 13 loci. As she did not have a suspect, she submitted the profile to the FBI's Combined DNA Index System (CODIS), which is a nationwide database. When she received information of a "hit" on appellant, who was in the database, she requested a reference sample from him.

Appellant was located at Corcoran State Prison, and his blood was drawn on December 12, 2003. Maosheng Ma analyzed the blood samples and confirmed that the DNA profiles matched. She then applied the product rule to determine the rarity of the profile to assess whether it was a real match or just coincidence because the profile was shared by more than one person. She determined that the profile obtained from the evidence item sperm fraction was estimated to occur at random in the general population in about one in 130 quadrillion African-Americans, one in 240 quadrillion Caucasians, and one in 4.3 quadrillion Hispanics.

Meanwhile, Detective Wright showed G.N. a photographic lineup that included appellant's photograph, but she did not identify anyone and stated she could not remember.5 Wright determined that appellant lived in Visalia in 1996, and that he had purchased a 1981 Chevrolet pickup in 1995. Appellant received a traffic citation with respect to that vehicle on March 7, 1996.6 The vehicle was involved in a hit-and-run accident on April 1, 1997, and it was noted at the time that the stereo was missing from the dashboard. Wright did not attempt to locate the pickup because, according to Department of Motor Vehicles (DMV) records, it was scrapped in 1999. Appellant was 34 years old and had a 12-year-old daughter at the time G.N. was assaulted. He also had tattoos on his arms.7



A. Kelly
1. Background

Prior to trial, appellant moved to exclude the DNA evidence pursuant to Evidence Code sections 402 and 405. He also requested a Kelly hearing, contending the evidence was inadmissible under that rule and under Evidence Code section 352. The People opposed the motion, arguing in part that the polymerase chain reaction (PCR) and short tandem repeat (STR) methods of DNA analysis used in the present case had already been proven to be generally accepted in the relevant scientific community.

A hearing was held outside the jury's presence at which Maosheng Ma testified.8 According to her, statistical interpretation is a large part of DNA analysis because, when a match between an evidence sample and a reference sample is obtained, it is important to know how rare the match is. As Ma framed the question, "Is it [a] coincidental match or is it really the person who is the origin of that stain?" A database is used to determine the rarity of the genetic profile in the population. Here, she used the ethnic databases approved by the FBI.

In calculating rarity, Ma used the product rule. She explained the significance of Hardy-Weinberg equilibrium and linkage equalization, and testified that she relied on the National Research Council's book — the NRC II, a DNA analyst's "Bible" — that recommended use of the product rule in estimating rarity where, as here, 13 polymorphic loci were being examined. Ma further explained that the Department of Justice had a protocol on how to use the product rule, which she followed. Pursuant to that protocol, once a genetic profile is obtained from evidence, a search is made of the criminal offender database.9 When there is a match — a "hit" — a request is made for a reference sample from the suspect. That sample is separately processed, and the profile thus obtained is then compared to the profile from the evidence sample. If there is a match, Ma then utilizes the FBI's population databases to find the frequency of that profile. She obtains a number, representing frequency, for each location, then multiplies all 13 together. That is the product rule, and it gives her the final statistical interpretation number. In obtaining this number, Ma uses a...

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