The People v. Reeves

• Decision Date: 30 July 2001
• Citation: 91 Cal.App.4th 14,109 Cal.Rptr.2d 728
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 1 Dist. 2001) THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE ADAM REEVES, Defendant and Appellant. A078462 FIRST APPELLATE DISTRICT, DIVISION THREE Filed:

109 Cal.Rptr.2d 728 (Cal.App. 1 Dist. 2001)

THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE ADAM REEVES, Defendant and Appellant.

A078462

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION THREE

Filed: 7/30/01

Corrected 8/28/01

(Marin County Super. Ct. No. SC61886)

Trial Court: Marin County Superior Court

Trial Judge: Hon. William H. Stephens

Counsel for Appellant: William M. Robinson, under appointment by the Court of Appeal

Counsel for Respondent: Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General; Ronald A. Bass, Senior Assistant Attorney General; Stan M. Helfman, Supervising Deputy Attorney General; Enid A. Camps, Deputy Attorney General; and Sharon G. Birenbaum, Deputy Attorney General.

CERTIFIED FOR PUBLICATION

Parrilli, J.

This appeal raises three challenges to the admissibility of statistical calculations based on DNA evidence. We conclude none of them has merit and that the procedures at issue have gained general acceptance in the scientific community.

A jury convicted appellant of several burglaries and sexual offenses committed against multiple victims during a nine-month period, and he was sentenced to 77 years in prison. With respect to two of the sex crimes charged, the jury heard forensic DNA evidence identifying appellant as the perpetrator. He challenges the admission of this evidence on appeal, claiming it should have been excluded pursuant to People v. Kelly (1976) 17 Cal.3d 24 (Kelly). Specifically, appellant argues: (1) the formula used by the California Department of Justice (DOJ) to calculate the statistical significance of DNA matches is not generally accepted in the scientific community because it fails to consider laboratory error rates; (2) the DOJ's formula for calculating statistical significance of DNA matches determined by polymerase chain reaction (PCR) analysis is not generally accepted in the scientific community; and (3) the DOJ's "fixed-bin" technique for determining the statistical probability of a DNA match violates correct scientific procedures because the bins are too small.¹ Appellant claims the erroneous admission of DNA evidence deprived him of a fair trial and requires reversal.

Appellant also raises several "non-DNA" claims. He contends the evidence was insufficient to prove sexual battery in one charge and attempted robbery in another. He also claims the trial court erred in failing to instruct the jury sua sponte on lesser included offenses, with respect to the robbery convictions, and in calculating his sentence.

We conclude the trial court properly admitted the DNA evidence. However, the judgment must be modified to remedy minor instructional and sentencing errors.

BACKGROUND

I.The Crimes

A.Sexual Assaults

1.Linda H.

One night in November 1993, 47-year-old Linda H. was home alone. She was not feeling well and went to bed in her clothes. She awoke around 5:30 a.m. to find an intruder leaning over her in the dark. He was holding a crowbar in one hand and pulling her bedside phone off the hook. He said, "Don't make a sound, don't look at my face, I don't want to have to hurt you, ma'am." He told Linda to roll over and then pulled her arm up behind her back so she could not move. He asked where Linda kept her jewelry, and she told him it was in the bathroom.

The intruder did not get up but began touching Linda's buttocks and thighs over her clothes. When Linda repeated that her jewelry was in the bathroom, the man said, "come here" and pulled her face toward his unzipped crotch. "This is what I want," he said, and pushed Linda's head onto his erect penis. Linda said "oh no," but the man shook the crowbar in a threatening way. He thrust his penis in and out of her mouth, still flexing and shaking the weapon. At one point, the man reached under Linda's clothes and touched her breast. When she pushed his hand away, the intruder turned her over, pulled down her pants and underwear. He touched his penis to her genitals and attempted to enter her. To prevent this, Linda grabbed the man's penis and masturbated him until he ejaculated into her hand.

Still holding the crowbar, the intruder forced Linda into the shower. He apologized, stating that God would punish him. He told Linda to wash her genital area thoroughly, with a lot of soap, and then told her to "stay there" while he walked toward the bedroom. After about 15 minutes, Linda ventured out of the shower and learned the intruder was gone. She later discovered her purse was missing from the house.

Linda described her attacker as Caucasian, between five feet seven and five feet nine inches tall, with a narrow waist and hips, strong hands and stubby fingers. Linda viewed two police lineups, in March 1994 and April 1996. At the first, held before appellant was a suspect, Linda felt "75 percent sure" one of the men was her attacker. At the second lineup, which included appellant, Linda noted that appellant and another suspect bore a strong physical resemblance to her attacker, but she could not positively identify either.

Police officers removed the stained bottom sheet from Linda's bed. Forensic investigators determined the stain was seminal fluid, and, upon microscopic examination, they found sperm. The semen came from a donor with Type O blood plus a secretor, and with a PGM enzyme of type 1 plus, 1 minus. Appellant matched all these characteristics. Police also recovered two pubic hairs from the sheet. One appeared to be the victim's, and the other resembled appellant's pubic hair.

2.Carol B.

Carol B., a 45-year-old woman who lived alone, went to sleep at 11:00 p.m. on December 7, 1993. She woke to find an intruder standing by her bed. When she screamed, the intruder immediately covered her mouth and told her, "Don't look at me, don't scream. I won't hurt you if you don't scream." Carol saw the man was holding a knife. She looked away and noticed her clock said it was 5:32 a.m. The intruder began fumbling with Carol's mini-blinds, eventually opening them and the bedroom window. He asked how old Carol was. She told him and then lied that she was very sick from cervical cancer, hoping that would scare him away. He replied, "Do you think you're the only person in this room who's sick?" Carol then heard clothes rustling, and when she turned she saw that the man's pants were unzipped and his penis exposed. He told her to put her hand on it and "move it up and down," which Carol reluctantly did. The intruder made Carol take off her shirt and forced her to orally copulate him. He ordered her not to spit anything out, and said "if you spit it out, it's going to be all over for you." When the man eventually ejaculated, Carol surreptitiously spit as much as she could into her hand and then wiped it onto her pillowcase. The man quickly dressed, closed the window and blinds, and ordered Carol into the shower. He told her to stay there while he looked around. When Carol emerged from the shower, she found the kitchen phone unplugged but was able to call police from a bedroom phone. She suffered a sore, bruised mouth from the attack, and she later discovered her purse had been taken.

Carol only saw her attacker briefly. She described him as Caucasian, in his late twenties, around five feet eight or nine inches tall, weighing 140 to 150 pounds. He was physically fit but not large, and he had rough hands with stubby fingers. Carol attended both the 1994 and 1996 police lineups. She put question marks next to three of the suspects in the first lineup and one in the second lineup, but she could not positively identify anyone as her assailant.

The police discovered three latent fingerprints from Carol's china cabinet. One of these, a partial print, matched appellant's left index finger. Police investigators also examined Carol's stained pillowcase. Because they could not readily determine whether the stains contained sperm, investigators sent the pillowcase to the DOJ's DNA laboratory in Berkeley, California. This laboratory has the technical capacity to separate sperm cells from saliva and other cellular debris.

3.Janice B.

One night in February 1994, 56-year-old Janice B. went to sleep alone and was awakened by a man who was holding her shoulder and telling her to stay quiet. The man had a flashlight, and he spent some time searching the room for a gun or security alarm. When the intruder came back to Janice and unzipped his pants, Janice said "Oh dear God, please be with me now." The man immediately zipped up his pants and asked Janice if she believed in God. She said she did and asked if he did too. When the man said "yes," Janice asked him what he was doing there. He told her he had a lot of problems. Janice tried to talk with the man about his problems while they each smoked a cigarette. Janice told the man he seemed too smart to be ruining his life, and the man said she seemed "like a neat person." But after they smoked, the intruder's attitude changed. He began barking instructions and said he would hurt Janice if she did not do what he said. He told her to bring him her best pair of silky underwear. When she did so, the man unzipped his pants and masturbated himself with the panties. He told Janice to pull up her nightgown so he could look at her, and after a while he handed Janice the panties and said, "[y]ou know what to do." She then masturbated him with the underwear. After he ejaculated, the intruder pulled down the bedding and scrubbed Janice's bed with the panties. He then ordered Janice into the shower and told her to stay there while he looked through the house. At one point, he came back into the bathroom, reminded her that he knew who she was and where she lived, and threatened to come back if she told anyone about the incident. When she heard the intruder leave, Janice ran to the manager's apartment and called the police. Along with the underwear her attacker had used, Janice noticed that some of her jewelry was...