The People v. Hill
| Decision Date | 16 May 2001 |
| Citation | 107 Cal.Rptr.2d 110,89 Cal. App. 4th 48 |
| Court | California Court of Appeals Court of Appeals |
| Parties | (Cal.App. 2 Dist. 2001) THE PEOPLE, Plaintiff and Respondent, v. JONATHAN LAMONTE HILL, Defendant and Appellant. B143524 SECOND APPELLATE DISTRICT DIVISION SIX Filed |
Thomas R. Adams, Judge Superior Court County of Santa Barbara
George L. Schraer, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Scott A. Taryle and Richard T. Breen, Deputy Attorneys General, for Plaintiff and Respondent.
CERTIFIED FOR PUBLICATION
Ten years ago in People v. Axell (1991) 235 Cal.App.3d 836, in an opinion authored by Presiding Justice Stone, we were the first California appellate court to approve the use of deoxyribonucleic acid (DNA) typing evidence to prove identity in a criminal case. Since then, the scientific methodology, while fundamentally the same, has become more refined and sophisticated. As of 1999, the was the Profiler Plus DNA test kit which here was used to prove identity. As we shall explain, this specific test kit does not embrace any new scientific technique requiring a first prong Kelly hearing. (People v. Kelly (1976) 17 Cal.3d 24.)
Jonathan Lamonte Hill appeals from the judgment after a jury convicted him of residential burglary (count 1; Pen. Code, 459)1, rape (count 2; 261, subd. (a)(2), forcible oral copulation (count 3; 288a, subd. (c)(2)), forcible sodomy (count 4; 286, subd. (a)), and anal and genital penetration by a foreign object (count 5; 289, subd. (a)(1)). The jury found that he used a deadly weapon, a knife, in the commission of counts 2 through 5 ( 12022.3, subd. (a)) and that the sex offenses were committed during the burglary ( 667.61, subd. (a)). The trial court imposed a sentence of 49 years to life.2
Appellant contends that the trial court erred in denying his motion to suppress evidence and in denying his request for a "full Kelly/Frye" hearing (People v. Kelly, supra, 17 Cal.3d 24; Frye v. United States (D.C. Cir. 1923) 292 Fed. 1013) to determine the scientific reliability of the Profiler Plus DNA test kit. We affirm.
On August 17, 1999, Melissa K. woke up in her Del Playa Isla Vista bedroom and saw a man, later identified through DNA analysis as appellant, sitting on her bed. It was 3:00 a.m. Appellant held a kitchen knife to her throat and said Melissa K. was ordered to roll over onto her stomach. Appellant pulled down her shorts, orally copulated her, digitally penetrated her vagina, raped, and sodomized her.
Appellant smelled of cigarette smoke and wore a chain-like necklace with a medallion or pendant. Before leaving, he rummaged through the bedroom. Appellant took her cordless phone, her watch, and money.
Melissa K. saw appellant's profile but not his face. She described him as follows: African-American, early 20's, about 5' 10" tall, lean and muscular, 160 to 170 pounds, a shaved head, and a deep or mellow voice. Melissa K. underwent a sexual assault medical exam. Vaginal and anal swabs were taken for DNA testing.
Twelve days later on August 29, 1999, another sexual assault occurred on Del Playa, two buildings away from Melissa K.'s apartment. Medea D. woke up at 6:00 a.m. and was assaulted by an African-American male in his early 20's. The man held a knife to her forehead and said, "Turn over, don't scream, and don't look at my face." Medea D. shared the bedroom with Angela A. When Angela A. woke up, she was also assaulted with the knife and ordered to lie face down. Angela A. bit the intruder's thumb and hit him with a clothes iron as he ran from the apartment.
Six Isla Vista residents told the police that a man who called himself John Beauregard fit the assailant's description and drove a four door black Honda Accord. Kelly N. and John went to a party at Melissa K.'s apartment three days before the August 17, 1999 rape. At that time, John gave Kelly N. his pager number. John said that he went to UCLA and played football. He bragged about his sexual aggressiveness. At trial, Kelly N. identified appellant as the man who said he was John Beauregard. Stephanie J. lived on Sabado Tarde, less than two blocks from Mellisa K.'s and Medea D.'s apartments. She told the police that John left her apartment shortly after 2:00 a.m. on August 17, wearing a gold chain and a medallion.
The police hired a private investigator to trace John's pager number by calling the pager and leaving an 800 number. When John called back, the call was traced to an apartment on the east side of Ventura.
On September 2, 1999, the police conducted a surveilance of appellant's apartment. The officers saw that he matched the description of the suspect in both sexual assaults. Appellant drove away in a four door black Honda Accord, this car matched the description of the vehicle driven by the man who called himself John Beauregard.
Appellant drove to a pay phone. Detective Jerry Cornell detained him. Appellant was wearing a gold-colored necklace and a medallion. Appellant falsely claimed that he did not have a driver's license or any other identification. During the detention appellant's pager went off and displayed the private investigator's 800 number. An identification card in appellant's wallet indicated that his name was Jonathan Lamonte Hill.
Appellant was arrested and his car was impounded. A carton of cigarettes was on the center console between the front seats. The police found a six-inch kitchen knife under the front passenger seat. It matched the description of the assailant's knife.
After appellant was transported to Santa Barbara, the victims attended a lineup but identified someone other than appellant as the assailant. Melissa K., however, could not eliminate appellant as the assailant.
The vaginal swabs taken from Melissa K. contained enough sperm for DNA analysis. A forensic lab, Forensic Analytical, conducted two DNA tests: a DQ-Alpha/Polymarker test that used six genetic markers, and a Profiler Plus test that used nine genetic markers plus a gender marker. The Profiler Plus test indicated that appellant's DNA and the sperm DNA taken from Melissa K. had a unique genetic profile occurring in only one of 5.89 trillion African-Americans. The DQ-Alpha/Polymarker test, which was based on a lesser amount and different markers, did not exclude appellant as the source of the sperm DNA. This test indicated that appellant's DNA and the sperm DNA taken from Melissa K. had a genetic profile occurring in one of 3,900 African-Americans.3 The trial court took judicial notice that 2.2 million African-Americans lived in California in 1990.
Appellant contends that the trial court erred in denying his motion to suppress the knife, the necklace, and the DNA evidence. He argues that the police lacked probable cause to arrest him and that the evidence seized was the fruit of an illegal arrest. (Wong Sun v. United States (1963) 371 U.S. 471, 484-488 .)
On review, we defer to the trial court's factual findings where supported by substantial evidence and determine whether there was probable cause to arrest. (E.g., People v. Leyba (1981) 29 Cal.3d 591, 596-597.) Probable cause to arrest (People v. Price (1991) 1 Cal.4th 324, 410.)
Here there was probable cause to arrest appellant. He closely matched the detailed description of the August 17, 1999 rapist. Melissa K. said the assailant was a black male in his 20's, 5' 8" tall, 160-170 pounds, with a trim athletic build, a shaved head, and a deep or mellow voice. Appellant also matched Medea D.'s description of her assailant although she described the suspect as somewhat heavier and taller.
Six Isla Vista residents told the police that the suspect went by the name of John and was in Isla Vista on August 17 and 28, the evenings before the crimes were committed. Johnny Medina and Jeff Evans "partied" with John on August 14-16, 1999. Medina said that he had a scar under an eye and was aggressive with women. John bragged about having sex with a woman from Isla Vista and that the woman was "afraid of him because he was so big." John said that he continued to have sexual intercourse with the woman after she told him to stop.
Stephanie J. and Lindsey M. told the police that John tried to stay at their Sabado Tarde apartment the evening of August 16, 1999. After John was asked to leave, he got on Stephanie J.'s bed and put his arms around her. She ordered him out and went to Medina's house for help. John left the morning of August 17 at 1:30 a.m. Melissa K. was sexually assaulated 90 minutes later, less than two blocks from Stephanie J.'s apartment.
Jeff Evans and Andrea M. reported that John was at their Sabado Tarde apartment on August 28, 1999, and that John tried to "hit on" Andrea M. When asked to leave, he grabbed her and licked her hand. John left the apartment at 1:30 a.m. on August 29. Andrea M. said that he had a gold chain around his neck and was smoking cigarettes or marijuana. Medea D. was assaulted hours later, less than two blocks away.
Appellant argues that a general description of a suspect, standing alone, is not probable cause to arrest. (People v. Mickelson (1963) 59 Cal.2d 448, 453-454; People v. Curtis (1969) 70 Cal.2d 347, 358; People v. Harris (1975) 15 Cal.3d 384, 387-389.) Here, however, the police had more than a general description. Detective Cornell saw that appellant had a scar under his eye, like the suspect and that he drove a car which matched the suspect's car. During the detention, the pager on appe...
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