People v. Soto

Citation30 Cal.App.4th 340,35 Cal.Rptr.2d 846
Decision Date22 November 1994
Docket NumberNo. G012636,G012636
CourtCalifornia Court of Appeals
PartiesPreviously published at 30 Cal.App.4th 340, 34 Cal.App.4th 1588, 39 Cal.App.4th 757, 43 Cal.App.4th 1783, 48 Cal.App.4th 924 30 Cal.App.4th 340, 34 Cal.App.4th 1588, 39 Cal.App.4th 757, 43 Cal.App.4th 1783, 48 Cal.App.4th 924, 63 USLW 2399 The PEOPLE, Plaintiff and Respondent, v. Frank Lee SOTO, Defendant and Appellant.
OPINION

SILLS, Presiding Justice.

Frank Lee Soto appeals his conviction for attempted rape 1 of an elderly woman who suffered a severe and totally debilitating stroke after the attack. The only evidence of the crime was the forensic analysis of the deoxyribonucleic acid (DNA) composition of a semen stain found on her bedspread which matched that of Soto's blood along with statements the victim made to others on the day of the attack. Because of the stroke, she was unable to testify at the trial.

Soto contests the admission of forensic testimony and opinion regarding the DNA match and attacks the evidence and argument presented at the Kelly 2 hearing, which the trial court found established the preliminary foundation for admission of this evidence. Specifically, he contends the "product rule"--a mathematical formula employed in extrapolating the likelihood of a random DNA match 3--has not been sufficiently accepted

in the relevant scientific community to meet the Kelly requirements. He also argues the court failed to properly instruct the jury as to the corroboration of the DNA evidence necessary to reach a guilty verdict, and erroneously denied his motion for acquittal at the end of the prosecution case based on this same argument. In addition, he contends the victim's statements were erroneously admitted hearsay; and without these hearsay statements, there was insufficient corroboration of the DNA evidence to sustain the conviction. We disagree and affirm.

FACTS

On November 17, 1989, Sally S., a 78-year-old widow, treated her neighbors, Leroy and Alma B., to lunch in celebration of their anniversary. They returned to their respective mobilehomes in the afternoon, where Leroy remained until a few minutes after 5 p.m. At that time, he heard a scream coming from the direction of Sally's trailer and ran over to see what was the matter. He found the front door closed and could not see any lights on. Walking around the place, he saw only Sally's car parked in the driveway and heard nothing but silence from inside the trailer. Leroy looked down the driveway to Soto's trailer, the next closest mobilehome, but saw no one. Leroy returned home.

He walked into his kitchen and got a drink of water and saw Sally in her kitchen through his kitchen window. At the same time, his phone rang; it was Sally calling from her kitchen phone. All she said was, "I've been raped." The neighbors dropped everything and went to her aid.

Sally was very upset, nervous and frightened. She told them she had washed and cleaned herself before they arrived. She explained she had been raped by a man who knocked on her back door. Thinking she recognized the voice, 4 she opened the door to a man who thrust a knife at her throat. She screamed; he threatened to kill her if she screamed again. A stocking mask covered his face so she could not see his features. He told her not to touch her "medic-alert" button, a service Sally had recently acquired. He then pushed her into the bedroom and "raped her."

Police Officer Dennis Gabrielli arrived a short time later. Sally was still quite upset, although not crying. He asked her what had happened. She told him she had been raped. She said she answered a knock on her door, thinking she recognized the voice, but was unable to hear what the voice was saying. She thought it was her neighbor, Soto, because she had talked to him earlier about doing her lawn work. They discussed what she wanted done on her lawn, and he left around 4:30 p.m. When she heard the knock on the door, followed by a muffled voice, she assumed he had returned. But when she opened the door, a man masked with pantyhose pushed his way inside and waved a knife at her face. He took her into the bedroom where he had intercourse with her. She was afraid he would kill her, and kept her eyes closed after he opened his pants, exposing his penis. She begged him not to hurt her, but he slightly penetrated her and ejaculated a few moments later. He ordered her to lie on the floor. After about five minutes, not hearing anything, she got up, washed herself and went into the kitchen. The backdoor was closed, which she then locked. She pushed her medic-alert button and followed that with the telephone call to her neighbors.

Sally told Gabrielli she could not identify the rapist because of the mask. She described her assailant as about 5 feet 9 inches tall and weighing 170 pounds. She thought he had light or blonde hair and an olive complexion. Soto is 5 feet 10 inches tall and weighs 183 pounds with an olive complexion but with black hair.

The police seized a comforter from Sally's bedroom after they exposed it to a black light and found fluorescent areas, indicating the presence of semen. A blood sample was Sally appeared at trial in a wheelchair accompanied by her daughter, Violet Richards, who attempted to speak for her mother. Sally had suffered a severe stroke in October 1990 which left her barely able to talk and unable to discuss "that day." The court found her incompetent to testify as a witness. 6 However, her statements about the rape made to her daughter, the neighbors, the doctor and Gabrielli immediately after the event were admitted as spontaneous statements or excited utterances.

obtained from Soto; its DNA and that of the semen found on the comforter matched. 5

DISCUSSION
I Admissibility of DNA Evidence

Soto argues, as he did at trial, that forensic evidence and opinion matching DNA from his blood with that extracted from the semen stain on the bedspread were erroneously admitted. He focuses his attack not on the analysis or comparison of his DNA to that found on the bedspread, but on a factor used in the second part of the process: the frequency determination. Once analysis and comparison results in a "match," the scientist then compares the DNA analysis and description with all other available DNA descriptions. Using a principle derived from actually comparing all known DNA descriptions, the scientist can extrapolate the estimated probability of a chance match between DNA found at the crime scene and that extracted from the suspect's blood. Soto contends the mathematical probability calculation of the prosecution's experts is disputed within the scientific community, and therefore, the whole subject of the DNA typing should be excluded from the courtroom.

To understand why the frequency determination has any bearing on admission of the analysis and comparison, a brief description of the process known as restriction fragment length polymorphism (RFLP) is necessary. As presented by Robert Keister, the criminalist at the Orange County Sheriff's Department (OCSD) laboratory and founder of its genetic comparison division, the process can be described relatively simply. 7 From a body fluid sample, the laboratory isolates and extracts DNA, a long molecule containing four kinds of nitrogenous bases which, when paired together in sequences, make up the 46 chromosomes contained in each cell's nucleus in the human body. Keister's laboratory looks at four different chromosomes along the DNA chain of each sample and stops at four different locations ("loci") along those four chromosomes, pulling out a total of eight segments. The size or length of these "variable number of repeating patterns" (VNTRs) is different from any other individual's. By comparing four different segments--or alleles 8 8--from four different chromosomes drawn from one person, the scientist can produce a "description" of that individual--in terms of his or her VNTR size--which is unique. (See also Schefter, DNA Fingerprints on Trial, Popular Science (Nov. 1994) pp. 62-63; Omura, Kelly-Frye Analysis: DNA Evidence on Trial, (1990-1991) 18 Western St.U.L.Rev. 331, 337-340.)

Each allele--from both the person being tested and the crime scene sample--is placed on a bed of gel and an electric current applied, causing the alleles to move down the gel at a speed and distance relative to its VNTR size. The DNA, which is negatively charged, moves toward the end of the bed which has been positively charged. Those "smallest" fragments--i.e., VNTRs of shortest length--move the fastest and the farthest, leaving the "larger" fragments behind them in distances relative to their size. The gel is then covered with a nylon membrane to which the allele attaches. Radioactive probes are introduced to the membranes, and the probes bond to their complementary bases on the DNA alleles. The membrane is then "photographed" with X-rays, and the radioactive probes leave an impression of unique bands on the X-ray film, called an autoradiograph ("autorad"). The technician then "reads" the autorads, visually matching the two sets of bands reflected on the film. To be considered a match, all four probes must visually match at all bands with the sample's four probes.

The same process is repeated by computer, which performs its own comparison through precision measurement of each band, its location and distance on the "ladder" made in the lane of gel and...

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