PEOPLE v. BURKS

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

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

No. D021036.

Decided: August 07, 1995

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.

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, § 209,1 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

DISCUSSIONADNA 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.]  [¶] 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.

1

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 Cal.Rptr.2d 132.) 5  “ ‘General acceptance’ under Kelly means a consensus drawn from a typical cross-section of the relevant, qualified scientific community.”  (People v. Leahy (1994) 8 Cal.4th 587, 612, 34 Cal.Rptr.2d 663, 882 P.2d 321;  People v. Taylor, supra, at p. 269, 40 Cal.Rptr.2d 132.)   The Kelly test does not demand “absolute unanimity of views in the scientific community․  Rather, the test is met if use of the technique is supported by a clear majority of the members of that community.”   (People v. Guerra (1984) 37 Cal.3d 385, 418, 208 Cal.Rptr. 162, 690 P.2d 635;  People v. Taylor, supra, at p. 269, 40 Cal.Rptr.2d 132.)   In determining the question of general acceptance, trial courts “must consider the quality, as well as quantity, of the evidence supporting or opposing a new scientific technique.   Mere numerical majority support or opposition by persons minimally qualified to state an authoritative opinion is of little value․”  (People v. Leahy, supra, at p. 612, 34 Cal.Rptr.2d 663, 882 P.2d 321.)

“Whether a particular technique has gained general acceptance in the scientific community can be ascertained by reference both to legal and scientific publications or journals and to judicial decisions.  [Citations.]”  (People v. Palmer (1978) 80 Cal.App.3d 239, 252, 145 Cal.Rptr. 466;  also People v. Barney, supra, 8 Cal.App.4th at p. 824, 10 Cal.Rptr.2d 731;  People v. Reilly (1987) 196 Cal.App.3d 1127, 1134, 242 Cal.Rptr. 496.)   Appellate review of a trial court's finding that a new scientific technique has been sufficiently established to have gained general acceptance in a particular field does not pose a question of pure fact, but instead presents a “mixed question of law and fact subject to limited de novo review.”  (Id. at pp. 1134–1135, 242 Cal.Rptr. 496.)  “Thus, we review the trial court's determination with deference to any and all supportable findings of ‘historical’ fact or credibility, and then decide as a matter of law, based on those assumptions, whether there has been general acceptance.  [Citations.]”  (Id. at p. 1135, 242 Cal.Rptr. 496.)   Our limited de novo review does not require that we decide whether a new scientific technique “ ‘is reliable as a matter of “scientific fact,” but simply whether it is generally accepted as reliable by the relevant scientific community’ [citation]․”  (Id. at p. 1152, 242 Cal.Rptr. 496.)

Further, “once a trial court has admitted evidence based upon a new scientific technique, and that decision is affirmed on appeal by a published appellate decision, the precedent so established may control subsequent trials, at least until new evidence is presented reflecting a change in the attitude of the scientific community.”  (People v. Kelly, supra, 17 Cal.3d at p. 32, 130 Cal.Rptr. 144, 549 P.2d 1240;  also People v. Leahy, supra, 8 Cal.4th at p. 595, 34 Cal.Rptr.2d 663;  People v. Barney, supra, 8 Cal.App.4th at p. 824, 10 Cal.Rptr.2d 731;  People v. Reilly, supra, 196 Cal.App.3d at pp. 1134–1135, 242 Cal.Rptr. 496.)

Based upon the evidence in this record and on published California appellate opinions, we conclude the superior court properly found the scientific community generally accepts the “modified ceiling” approach used here in the third step of RFLP analysis of DNA to determine the statistical probability Burks was the source of the semen found on his victims.

2

THE RECORD

Burks contends the superior court reversibly erred in admitting DNA evidence since the record assertedly revealed a deeply divided scientific community embroiled in an ongoing dispute about the step of RFLP analysis involving calculation of the statistical frequency of a particular DNA banding pattern.   Specifically, Burks contends the record showed that the scientific community does not generally accept the “modified ceiling” approach used here in determining the statistical probability that he was the donor of the semen found on the victims.   However, we conclude the superior court properly admitted the DNA evidence.

(a)

KELLY HEARING

In support of his motion to exclude DNA evidence, Burks submitted documentary evidence including various scientific articles.   Burks also presented an affidavit by Mueller and a letter written by Lewontin.   Opposing Burks's motion, the People submitted voluminous documentary evidence.

At the outset of the Kelly hearing, the court stated it had reviewed the materials submitted by counsel and “with the exception of the Cohen article” 6 there appeared not to be “a terrible dispute that the N.R.C. calculations are at least conservative enough to be used.”   The court also stated the reliability of the NRC-proposed “modified ceiling” approach was “not hotly disputed.”   At the hearing the prosecution's expert geneticist Ryder testified and was cross-examined.   The court admitted the overwhelming bulk of the documentary evidence proffered by the parties.

After hearing, the court ruled the People could introduce DNA evidence using the “modified ceiling” approach for calculating statistical frequency.   The court concluded the scientists “criticizing that approach for the most part either are saying that it shouldn't be used because the product approach is best, or they are on the other side, they are a very small minority ․ just because a small minority criticizes a particular scientific principle does not mean that it's not generally accepted by the majority.”  (People v. Guerra, supra, 37 Cal.3d at p. 418, 208 Cal.Rptr. 162, 690 P.2d 635;  People v. Taylor, supra, 33 Cal.App.4th at p. 269, 40 Cal.Rptr.2d 132.)

(b)

ANALYSIS

Burks contends the evidence demonstrated the scientific community remained deeply divided “on the existence of population substructuring and its effect on the proper method for calculating statistical significance.”   According to Burks, the existence of such continuing division within the scientific community mandated exclusion of the DNA evidence.   However, when viewed in the light most favorable to the prosecution as the prevailing party, the evidentiary record supports the superior court's finding the NRC-proposed “modified ceiling” approach used here was generally accepted in the scientific community.

The December 1991 issue of Science magazine contained an article by Lewontin and Hartl asserting use of the “unmodified product rule” in DNA statistical calculation could produce seriously inaccurate estimates due to “substructuring” of gene frequencies among ethnic subgroups within major racial categories.  (Lewontin & Hartl, Population Genetics in Forensic DNA Typing (Dec. 20, 1991) Science at p. 745.) 7  In the same issue of Science, an article by Chakraborty and Kidd concluded although substructuring might occur in human populations the potential for error in applying the “unmodified product rule” was acceptably small.  (Chakraborty & Kidd, The Utility of DNA Typing in Forensic Work (Dec. 20, 1991) Science at p. 1735.)   Although noting available data on human populations did not support the theory that applying the unmodified product rule would result in significant inaccuracies due to substructuring, the NRC report in 1992 assumed for sake of discussion that substructuring existed and might significantly impact forensic calculation processes.  (NRC rep., supra, at pp. 12, 80.)   The NRC report recommended a study be undertaken to determine the actual impact of population substructuring.   In the interim, the NRC report recommended use of the ceiling or “modified ceiling” approach for the statistical calculation step of RFLP analysis of DNA.  (NRC rep., supra, at pp. 12–15, 79–85.)   The NRC report stated:  “Use of the ceiling principle yields the same frequency of a given genotype, regardless of the suspect's ethnic background, because the reported frequency represents a maximum for any possible ethnic heritage.   Accordingly, the ethnic background of the individual suspect should be ignored in estimating the likelihood of a random match.   The calculation is fair to suspects, because the estimated probabilities are likely to be conservative in their incriminating power.”  (NRC rep., supra, at p. 13.)

In an April 1993 letter to the editor of Science, Lewontin and Hartl concluded there were essentially as many genetic variations among ethnic groups within major races as there were among races.   The letter contradicted the assertion in their December 1991 article that there was more genetic variation within ethnic groups than between races.   According to the People's expert geneticist Ryder, such letter reduced the scientific weight of the argument by Lewontin and Hartl that the “unmodified product rule” should not be applied.

Further, after examining the potential impact of population substructuring on frequency estimates provided by forensic laboratories, various other scientists published papers in reputable journals concluding use of the “unmodified product rule” in DNA analysis was appropriate.   Those papers included a February 1992 Science article by Risch and Devlin entitled On the Probability of Matching DNA Fingerprints;  an article by Morton in the April 1992 proceedings of the National Academy of Sciences entitled Genetic Structure of Forensic Populations;  a 1992 article by Devlin and Risch in the American Journal of Human Genetics entitled Ethnic Differentiation at VNTR Loci;  a Human Genetics article by Chakraborty and Li Jin entitled Heterozygote Deficiency;  a letter in Science in May 1993 by Devlin and Risch entitled NRC Report on DNA Typing;  a letter in Science in May 1993 by Lander entitled DNA Fingerprinting, the NRC Report;  and an article in the January 1994 Journal of Forensic Sciences by Devlin, Risch and Roeder entitled Comments on the Statistical Aspects of the NRC's Report on DNA Typing.8  Reaching similar conclusions were articles by Budowle et al. accepted for publication entitled The Assessment of Frequency Estimates and Evaluation of HINF 1.

In the October 1994 issue of Nature magazine, an article by Lander & Budowle asserted “[t]he DNA fingerprinting wars are over.”  (Lander & Budowle, DNA Fingerprinting Dispute Laid to Rest (Oct. 27, 1994) 371 Nature 735.)   The article observed the ceiling principle recommended by the NRC report sacrificed some of the statistical power of the “unmodified product rule” in order “to neutralize all possible worries about population substructure.”   (Id. at p. 736.)   Characterizing the ceiling principle as a “lop-sided approach” favoring the criminal defendant, the article noted such principle “was intended as an ultra-conservative calculation” giving “the benefit of every conceivable doubt to the defendant” and was recommended by the NRC because “it could withstand attacks from the most stubborn and creative attorneys.”  (Id. at pp. 736–737.)

Testifying for the prosecution at the Kelly hearing, expert geneticist Ryder stated the “modified ceiling” approach was “extremely” conservative in that its estimated probability of a random match would be significantly higher than the actual probability of a random match.   Ryder further observed there was consensus in the scientific community that the “modified ceiling” approach represented a very conservative approach.   The People also submitted an affidavit by Lander stating data produced using the ceiling approach met the high standard of science and were generally accepted.   In his affidavit, Lander also commented on a court opinion excluding DNA evidence:  “The court focuses on the fact that scientists disagree about the best method of estimating population frequencies, but seems to miss the point that scientists can disagree about the best estimate of a frequency, while agreeing that a formula, or even several alternative formulas, provide an upper bound on the frequency.   This is the case for the interim ceiling principle, which makes adequate allowance for variation among populations, and results in estimates that would not overestimate the case against the defendant.”   Additionally, the People submitted an affidavit by Hartl stating:  “The modified ceiling principle for estimating an upper limit on the population frequency of a DNA pattern is a reasonable and prudent interim method for estimating probabilities of matching DNA types between random individuals.” 9

In contending the superior court erroneously concluded the “modified ceiling” approach was generally accepted in the scientific community, Burks classifies that community into three groups, to wit, (1) Budowle and others who believe the “modified ceiling” approach is arbitrary, unscientific and overly conservative;  (2) Hartl and others who believe the “modified ceiling” approach is a reasonable and prudent interim measure;  (3) and Mueller, Cohen and others who believe the data remain insufficient to determine whether the “modified ceiling” approach is sufficiently conservative.   In support of his contention, Burks submitted Mueller's affidavit asserting the “modified ceiling” approach was “not generally accepted in the scientific community as a reliable method for the estimation of DNA profile frequencies.”   However, the record supports the superior court's decision to admit DNA evidence analyzed under the “modified ceiling” approach.   Burks cannot demonstrate prejudice resulting from admission of DNA evidence analyzed under an approach viewed by some scientists as too conservative, to wit, as unduly favorable to criminal defendants by overstating the significance of any impact from substructuring.   Further, the trial court and this court may properly decide the “modified ceiling” approach has gained general acceptance in the scientific community despite evidence of dissenting views.   Absolute unanimity is not required.   (People v. Guerra, supra, 37 Cal.3d at p. 418, 208 Cal.Rptr. 162, 690 P.2d 635;  People v. Taylor, supra, 33 Cal.App.4th at p. 269, 40 Cal.Rptr.2d 132.)   As the superior court correctly noted, “just because a small minority criticizes a particular scientific principle does not mean that it's not generally accepted by the majority.”

As acknowledged by the People's expert Ryder, various scientists including Budowle, Monson, Morton, Weir, Balazf, Evett, Devlin and Risch have criticized the NRC's proposed ceiling or “modified ceiling” approach as arbitrary or lacking scientific justification.   For example, Morton's article in the April 1992 proceedings of the National Academy of Science entitled Genetic Structure of Forensic Populations asserted those approaches violated statistical theory for calculating probabilities.   Similarly, an article in Science in February 1993 by Devlin, Risch and Roeder entitled Statistical Evaluation of DNA Fingerprinting, A Critique of the N.R.C.'s Report described the NRC's figures for the “modified ceiling” approach as arbitrary, found “little scientific basis” for that “method of forensic inference,” and concluded the scientific basis for adopting a ceiling principle was flawed.   Burks also submitted a February 1993 letter by Lewontin asserting:  “In my view, the ‘modified ceiling principle’ has no rational basis and has been chosen by entirely arbitrary means.   In the absence of knowledge about the actual frequencies of different DNA patterns in relevant populations, the choice of a value of one-tenth is without any basis.   It is clear to me that the ‘modified ceiling principle’ was invented in the hope of maintaining the use of DNA pattern matching for forensic purposes, despite the lack of the necessary statistical information to allow a valid estimate of matching probabilities.” 10  Similarly, Mueller's affidavit also asserted one group of scientists believed the “modified ceiling” principle was “flawed,” “scientifically regressive,” and without “statistical support.”   Further, Burks submitted the NRC's August 1993 proposal to update its 1992 report.   That proposal acknowledged “the debate has continued after the release of the NRC report” and the ceiling principle “has been criticized as being arbitrary and confusing to apply.”   However, as acknowledged by Burks, the scientists who have criticized the ceiling approach as arbitrary and lacking in scientific justification “believe that the ceiling approach produces figures that are too conservative.”   Manifestly, admission of DNA evidence analyzed under an overly conservative approach unduly favorable to defendants could not harm defendant Burks.   Indeed, as noted by the trial court, most of the scientific critics of the “modified ceiling” approach used here favored application of the “unmodified product rule.”   Applying the “unmodified product rule” here would have resulted in an estimated unlikelihood of a random match much greater than resulted from the “modified ceiling” approach.   Under the “unmodified product rule” the likelihood the DNA of the recovered semen samples would randomly match African–American Burks's DNA was 1 in 5.8 billion, a figure far less favorable to Burks than the probability estimate of a random match of 1 in 1.3 million under the “modified ceiling” approach used here.

Finally, we reject Burks's contention a substantial dispute remains in the scientific community on the issue whether the “modified ceiling” approach is sufficiently conservative.   Prosecution expert Ryder acknowledged some scientists believed the data to be insufficient to determine whether the ceiling approach is conservative enough.   Mueller's affidavit also indicated some scientists were concerned about the issue “whether these interim methods will provide conservative enough estimate[s] of DNA profile frequencies․” 11  Further, Burks submitted an article by Cohen asserting the ceiling approach did not always produce conservative results.   (Cohen, The Ceiling Principle is Not Always Conservative in Assigning Genotype Frequencies for Forensic DNA Testing, supra, 51 Am.J.Hum.Genetics 1165–1168.)   However, whether a substantial segment of the scientific community believed the “modified ceiling” approach to be insufficiently conservative so as to preclude its “general acceptance” was a question for resolution in the first instance by the trial court and then by this court on appeal.  (People v. Guerra, supra, 37 Cal.3d at p. 418, 208 Cal.Rptr. 162, 690 P.2d 635;  People v. Taylor, supra, 33 Cal.App.4th at p. 269, 40 Cal.Rptr.2d 132.)   The superior court found there was no substantial dispute that the NRC calculations were conservative enough to be used.   Similarly, we find unpersuasive the evidence presented by Burks suggesting the persistence of substantial dispute in the scientific community about whether the interim “modified ceiling” approach is sufficiently conservative.

In sum, the evidence indicated the clear majority of the scientific community believed the “modified ceiling” approach either to be irrationally conservative as unduly favoring criminal defendants or to constitute a reasonable interim method to produce admissible probability evidence untainted by any adverse impact of population substructuring on analysis using the “unmodified product rule.”   Nothing in the record or in Burks's appellate briefs demonstrates error in the superior court's conclusion the scientific community generally accepted the “modified ceiling” approach.   The record shows the superior court fully explored the issue of “general acceptance” by hearing expert testimony and considering numerous exhibits including scientific journal articles and transcripts of admissibility hearings in several other cases.   The court reasonably based its ultimate conclusion primarily on the NRC report including its recommendation reached by prominent experts that the interim “modified ceiling” approach be used, Ryder's testimony, and the affidavits of Lander and Hartl.   Hence, the record demonstrates the trial court properly admitted the DNA evidence as satisfying the admissibility requirements of Kelly.

3

CALIFORNIA APPELLATE OPINIONS

Published California appellate opinions also support our conclusion the superior court properly found the scientific community generally accepts the “modified ceiling” approach used here in the third step of RFLP analysis of DNA to determine the statistical probability Burks was the source of the semen found on his victims.

In People v. Barney, supra, 8 Cal.App.4th 798, 10 Cal.Rptr.2d 731, the appellate court faced the issue whether the “unmodified product rule” used in the statistical calculation step of RFLP analysis was generally accepted by the scientific community.  (Id. at p. 809, 10 Cal.Rptr.2d 731.)   In reaching its conclusion use of the “unmodified product rule” was not generally accepted, the court in Barney cited the competing articles in the December 1991 issue of Science about the possible effect of population substructuring on calculating a probability estimate under the “unmodified product rule.”   (Id. at pp. 802, 815–822, 10 Cal.Rptr.2d 731;  accord People v. Wallace, supra, 14 Cal.App.4th at pp. 657–660, 17 Cal.Rptr.2d 721.)   However, in Barney the appellate court also indicated the “ceiling frequency” approach or “modified ceiling” approach proposed by the NRC would likely constitute a “sufficiently conservative method of determining statistical significance” generally accepted in the scientific community.  (People v. Barney, supra, at pp. 821–822, 10 Cal.Rptr.2d 731.)   In denying Burks's motion to exclude DNA evidence, the superior court found the conservative “modified ceiling” approach used here overcame the problem with the “unmodified product rule” discussed in Barney.   As discussed, the superior court properly concluded the “modified ceiling” approach was generally accepted within the scientific community with only a small minority of scientists disputing that approach.  !(RT 2:232–233)!   Since the “modified ceiling” method employed here in the statistical calculation step of RFLP analysis of DNA is more favorable to Burks than the “unmodified product rule” rejected in Barney and is generally accepted within the scientific community, we conclude RFLP analysis using the more conservative “modified ceiling” approach satisfies Kelly evidentiary admissibility requirements.  (Accord, People v. Taylor, supra, 33 Cal.App.4th at p. 267, 40 Cal.Rptr.2d 132;  cf. People v. Leahy, supra, 8 Cal.4th at p. 595, 34 Cal.Rptr.2d 663, 882 P.2d 321;  People v. Barney, supra, at p. 824, 10 Cal.Rptr.2d 731;  People v. Reilly, supra, 196 Cal.App.3d at p. 1134, 242 Cal.Rptr. 496;  People v. Palmer, supra, 80 Cal.App.3d at p. 254, 145 Cal.Rptr. 466.)

Our conclusion is consistent with the opinion in People v. Taylor, supra, 33 Cal.App.4th 262, 40 Cal.Rptr.2d 132.   In Taylor the appellate court noted the “modified ceiling” approach assumes “the existence of population subgroups and allow[s] for that possibility by assuming a minimum frequency of DNA patterns unless the actual data gave a higher frequency figure.”  (Id. at p. 267, 40 Cal.Rptr.2d 132.)   The court also observed the “modified ceiling” approach “is considered to be conservative in that it presumably overstates the actual frequency of DNA pattern matches in the general population, and therefore benefits the defendant by suggesting that matches made with defendant's DNA are more common than the actual data would suggest.”  (Ibid.)  Taylor involved the precise issue now before us, to wit, whether the “modified ceiling” approach recommended by the NRC has gained general acceptance in the scientific community.  (Id. at p. 268, 40 Cal.Rptr.2d 132.)   In Taylor the trial court answered the question affirmatively and its ruling was affirmed in a published appellate opinion.   (Id. at pp. 268–270, 40 Cal.Rptr.2d 132.)   Since this record does not contain evidence indicating the attitude of the scientific community has changed since Taylor, we may properly consider Taylor to be controlling precedent.  (People v. Leahy, supra, 8 Cal.4th at p. 595, 34 Cal.Rptr.2d 663, 882 P.2d 321;  People v. Kelly, supra, 17 Cal.3d at p. 32, 130 Cal.Rptr. 144, 549 P.2d 1240;  People v. Barney, supra, 8 Cal.App.4th at p. 824, 10 Cal.Rptr.2d 731;  People v. Reilly, supra, 196 Cal.App.3d at pp. 1134–1135, 242 Cal.Rptr. 496.)

B

SUBSTANTIAL EVIDENCE SUPPORTED CONVICTIONS ON VARIOUS COUNTS1KIDNAPPING FOR ROBBERY

 Section 209, subdivision (b), provides:  “Any person who kidnaps or carries away any individual to commit robbery shall be punished by imprisonment in the state prison for life with possibility of parole.”   Burks attacks as without substantial evidentiary support the findings he kidnapped Phyllis and Ofelia to commit robbery.   Citing People v. Daniels (1969) 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225 and its progeny, Burks contends the prosecution failed to meet its burden to show by substantial evidence (1) that his forcible movement of each victim was not merely incidental to the robbery or (2) that such movement substantially increased the risk of harm beyond that inherent in robbery.12  Burks asserts his movement of Phyllis was “entirely on the premises of the church” and thus merely incidental to the robbery and sexual assaults.   Burks characterizes his movement of Ofelia as similarly incidental since it assertedly occurred “entirely on the premises of the health center.”   Citing In re Crumpton (1973) 9 Cal.3d 463, 467, 106 Cal.Rptr. 770, 507 P.2d 74, Burks also contends his acts in taking his victims “to a more remote area out of public view” did not by themselves substantially increase his victims' risk of harm.   We conclude substantial evidence and reasonable inferences supported each conviction of kidnapping for robbery.

“The test on appeal for determining if substantial evidence supports a conviction is whether a ‘ “reasonable trier of fact could have found the prosecution sustained its burden of proving the defendant guilty beyond a reasonable doubt.” ’  [Citation.]  In making this determination, we ‘ “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” ’  [Citation.]”  (People v. Rayford, supra, 9 Cal.4th at p. 23, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)

In People v. Rayford, supra, 9 Cal.4th 1, 36 Cal.Rptr.2d 317, 884 P.2d 1369, the Supreme Court applied the Daniels test in determining whether there was substantial evidence to support a conviction for kidnapping with the intent to commit rape (§ 208, subd. (d)).  In Rayford the victim (Elizabeth) “was forcibly moved 105 feet at night from the parking lot of a closed store to the other side of a wall located at the edge of the lot.   She was forced to sit against the wall and beside a small tree, 34 feet from the street.   The wall blocked the view of any passersby from the parking lot side, and the tree and the bushes at the end of the wall limited detection of Elizabeth from the street.   While the area beyond the wall bordered on a two-lane street, it was undeveloped, and made up of dirt and rocks․  There is no evidence as to whether they [defendant and Elizabeth] were detectable from the street.”  (People v. Rayford, supra, 9 Cal.4th at p. 23, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)   Based upon that record, the Supreme Court in Rayford held:  “The jury could reasonably have concluded that Elizabeth's forcible movement for this distance and under these circumstances was not merely incidental to the attempted commission of rape, and substantially increased her risk of harm.   Thus, we cannot conclude as a matter of law that there was insufficient evidence of asportation to support the jury's verdict.”   (Ibid.)

Similar to the Supreme Court in People v. Rayford, supra, 9 Cal.4th 1, 36 Cal.Rptr.2d 317, 884 P.2d 1369, we are unable to conclude as a matter of law there was insufficient evidence of asportation to support Burks's convictions for kidnapping to commit robbery.   As in Rayford, the jury here was instructed in the language of the Daniels test of asportation.   (People v. Rayford, supra, at pp. 6, 23, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) 13  On this record the jury could reasonably conclude Burks's forcible asportation of his victims was not merely incidental to the robberies and substantially increased the victims' risk of harm.  (Id. at p. 23, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)

After accosting Ofelia in the health center parking lot, Burks dragged and pushed her 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 with dry leaves about 223 feet from the location where he first grabbed her.   Burks accosted Phyllis in front of a church in public view and choked her with his arm around her neck.   Burks then dragged and carried Phyllis about 261 feet away to an interior portion of the church courtyard out of public view.   The circumstances of Burks's forcible movement of Ofelia and Phyllis were not substantially distinguishable from those the Supreme Court held sufficient to support a finding of kidnapping for rape in People v. Rayford, supra, 9 Cal.4th 1, 36 Cal.Rptr.2d 317, 884 P.2d 1369.   Indeed, Burks moved each of his victims a greater distance than did the defendant in Rayford.   Further, similar to the defendant in Rayford, Burks exposed his victims to a greater risk of suffering significant harm by violently moving them to areas where the likelihood of detection was decreased and Burks's opportunity to commit additional crimes was enhanced.  (Id. at pp. 13–14, 23, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)   Moreover, the jury could reasonably find Burks's taking Ofelia from a parking lot through bushes and trees, over a wall, and down a slope into a rocky area with dry leaves and a big pipe increased the danger inherent in any attempt by Ofelia to escape.  (Id. at p. 13, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)

In sum, substantial evidence supported Burks's convictions for kidnapping Ofelia and Phyllis to commit robbery.

2

BURKS'S SUPPLEMENTAL BRIEFS

In a supplemental opening brief, Burks raises factual matters assertedly bearing on his conviction for attempting to murder Phyllis.   Burks asserts the opening brief filed by counsel omitted testimony indicating Phyllis was not seriously injured in the attack.   Burks also asserts Phyllis's preliminary hearing testimony about Burks's appearance on the day of the attack was inconsistent with an officer's trial testimony about her statement to police.   Burks further asserts a deputy district attorney improperly told prosecution witness Verdugo to identify Burks at the preliminary hearing.   In his supplemental reply brief, Burks again cites testimony bearing on the extent of Phyllis's injuries, the officer's testimony about her description of Burks, and the district attorney's asserted instructions to witness Verdugo.   Burks's supplemental reply brief also claims there were discrepancies between statements in a district attorney report and trial testimony about his conduct shortly after the crimes against Phyllis;  an officer improperly told Phyllis to identify Burks at a lineup;  an officer improperly forced Burks to submit to a blood test;  the DNA samples from the crime scene were contaminated;  and the findings on the prior conviction allegations lacked a sufficient factual basis.

 However, Burks's supplemental briefs have not demonstrated any prejudicial error.   Review of the record does not reveal any impropriety at the preliminary hearing involving witness Verdugo.   Further, since at trial Burks admitted the prior conviction allegations, he may not now challenge their factual basis.   Moreover, Burks's complaints about various evidentiary matters may not be reviewed on appeal since he has not shown he raised specific timely objections involving those matters in the superior court.   The remainder of Burks's contentions impermissibly seek reweighing on appeal of evidence presented at trial.   The jury, not the appellate court, is the arbiter of any inconsistencies in testimony.

 Finally, substantial evidence supported Burks's conviction for attempted murder of Phyllis.  “The elements of attempted murder are the intent to murder a human being and a direct but ineffectual act in furtherance of such intent, such act being more than mere preparation.  [Citations.]”  (People v. Adami (1973) 36 Cal.App.3d 452, 455, 111 Cal.Rptr. 544.)   Phyllis testified:  Burks repeatedly beat her head against the cement after threatening to kill her if she did not shut up;  Phyllis felt a force on her chest “crushing the life” out of her and so “terrible” she could hardly breathe;  and Burks wrapped tape around Phyllis's throat, causing her to think she was being strangled to death until the tape broke.   Based upon that substantial evidence, the jury properly found Burks guilty of attempted murder.  (People v. Lucero (1988) 44 Cal.3d 1006, 1020, 245 Cal.Rptr. 185, 750 P.2d 1342;  People v. Dillon (1983) 34 Cal.3d 441, 455–456, 194 Cal.Rptr. 390, 668 P.2d 697.)

CUSTODY CREDITS

The superior court awarded Burks total custody credits of 619 days, representing 413 days actual local time plus 206 days credit for local conduct.   Asserting the probation report miscalculated his actual time in custody, Burks contends he is entitled to a total credit of 643 days representing 429 days actual local time and 214 days for local conduct.   The People concede the custody award should be modified accordingly.

DISPOSITION

The judgment is modified to award Burks custody credits of 429 days actual local time plus 214 days local conduct for a total credit of 643 days.   As modified, the judgment is affirmed.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise specified.

2.   The three steps in the RFLP method of DNA testing are processing, matching, and statistical calculation.  (See generally People v. Barney (1992) 8 Cal.App.4th 798, 805–810, 10 Cal.Rptr.2d 731;  People v. Axell (1991) 235 Cal.App.3d 836, 844–848, 1 Cal.Rptr.2d 411.)   On appeal Burks does not challenge the first two steps of the RFLP method.

3.   People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240.

4.   Various cases have discussed the “product” or “multiplication” rule:  “The statistical significance of a match—i.e., the frequency with which an entire pattern of bands occurs in a target population—is determined by a series of calculations.   Assuming four sets of two bands have been produced by the processing step, the two frequencies for each set of bands ․ are multiplied, using a version of a standard population genetics equation called the Hardy–Weinberg equation.   The resulting four numbers are then multiplied together—this method is called the product rule—to reflect the total frequency with which the entire DNA pattern appears in the target population.”  (People v. Barney, supra, 8 Cal.App.4th at p. 809, 10 Cal.Rptr.2d 731;  cited in People v. Amundson, supra, 34 Cal.App.4th at p. 1167, 41 Cal.Rptr.2d 127.)   We may refer to the “product” or “multiplication” rule including the Hardy–Weinberg equation as the “unmodified product rule.”   As we shall explain, the appellate court in Barney concluded use of the “unmodified product rule” in calculating a probability estimate was not generally accepted within the scientific community.  (People v. Barney, supra, at pp. 802, 815–822, 10 Cal.Rptr.2d 731;  accord People v. Wallace (1993) 14 Cal.App.4th 651, 657–660, 17 Cal.Rptr.2d 721.)

5.   The Kelly rule tests only “the fundamental validity of a new scientific methodology, not the degree of professionalism with which it is applied.  [Citation.]  Careless testing affects the weight of the evidence and not its admissibility, and must be attacked on cross-examination or by other expert testimony.”  (People v. Farmer (1989) 47 Cal.3d 888, 913, 254 Cal.Rptr. 508, 765 P.2d 940.)   Burks does not challenge the degree of professionalism employed in his particular case.

6.   Cohen, The Ceiling Principle is Not Always Conservative in Assigning Genotype Frequencies for Forensic DNA Testing (1992) 51 Am.J.Hum.Genetics 1165–1168.)

7.   Lewontin and Hartl questioned “the reliability of the current method of multiplying together the frequencies with which each band representative of a DNA fragment appears in a broad data base.   The problems, they say, is that this method is based on incorrect assumptions that (1) members of the racial groups represented by the broad data bases—Caucasians, Blacks, and Hispanics—mate within their groups at random, i.e., without regard to religion, ethnicity, and geography, and (2) the DNA fragments identified by DNA processing behave independently and thus are ‘independent in a statistical sense’—i.e., in the language of population genetics, they are in ‘ “linkage equilibrium.” ’  (Lewontin & Hartl, supra, at p. 1746.)“Lewontin and Hartl claim that, contrary to the assumption of random mating, ethnic subgroups within each data base tend to mate endogamously (i.e., within a specific subgroup) with persons of like religion or ethnicity or who live within close geographical distance.   Such endogamous mating tends to maintain genetic differences between subgroups—or substructuring—which existed when ancestral populations emigrated to the United States and has not yet had sufficient time to dissipate.   As a result, the subgroups may have substantial differences in the frequency of a given DNA fragment—or VNTR allele—identified in the processing step of DNA analysis.   A given VNTR allele may be relatively common in some subgroups but not in the broader data base.  (Lewontin & Hartl, supra, at pp. 1747–1749.)“There are purportedly two consequences of genetic substructuring and subgroup differences in allele frequencies:  (1) it is inappropriate to use broad data bases to which all Caucasians, Blacks, and Hispanics may be referred for estimating frequencies, and (2) it is inappropriate to multiply frequencies together, for want of linkage equilibrium.   The current multiplication method, using the Hardy–Weinberg equation (which requires statistical independence within a locus, or Hardy–Weinberg equilibrium) and the product rule (which requires statistical independence across loci, or linkage equilibrium) will be reliable only if there is extensive study of VNTR allele frequencies in a wide variety of ethnic subgroups.  (Lewontin & Hartl, supra, at pp. 1748–1749.)“Lewontin and Hartl conclude that because the frequency of a given VNTR allele may differ among subgroups, reference to a broad data base may produce an inaccurate frequency estimate for a defendant's subgroup.   The current multiplication method may greatly magnify the error.   The resulting probability for the defendant's entire DNA pattern may be in error by two or more orders of magnitude (e.g., 1 in 7.8 million could really be 1 in 78,000).  (Lewontin & Hartl, supra, at p. 1749.)”   (People v. Barney, supra, 8 Cal.App.4th at pp. 814–815, 10 Cal.Rptr.2d 731.)

8.   E.g., Lander's letter to Science published in May 1993 stated:  “In order to insure the admissibility of this important technology, the N.R.C. committee sought to define common ground, namely, a standard of practice so conservative as to ensure there would be no serious scientific argument that the evidence could be said to overstate the case against a defendant.”

9.   As the superior court noted, Hartl's affidavit was “particularly significant” because the conclusion in People v. Barney, supra, 8 Cal.App.4th 798, 10 Cal.Rptr.2d 731, that the scientific community had not generally accepted the “unmodified product rule” was based in substantial part on the December 1991 article by Lewontin and Hartl questioning that rule as overstating the unlikelihood of a random match.

10.   Responding to the assertions by Lander and Budowle that “[t]he DNA fingerprinting wars are over” (Lander & Budowle, DNA Fingerprinting Dispute Laid to Rest, supra, 371 Nature at p. 735), Lewontin wrote a letter to the magazine stating “Lander and Budowle, in declaring the end of the controversy over the forensic application of DNA technology, have presented a piece of propaganda that completely distorts the current situation in a very difficult matter at the nexus of science and law.”   (Correspondence from Lewontin (Dec. 1, 1994) 372 Nature 398.)

11.   In his affidavit, Mueller asserted that two cited scientific articles demonstrated that “the ceiling principle will work only when the source data bases used obey the conditions of Hardy–Weinberg and linkage equilibrium.   If the data bases do not obey these conditions then the results from the ceiling principle may actually underestimate the true frequency of particular profiles.   These conclusions mean results from the modified ceiling principle must be viewed cautiously, especially since some statistical analysis of data bases used in these Cellmark calculations have shown departures from these assumptions [citation].”

12.   In People v. Daniels, supra, 71 Cal.2d 1119, 80 Cal.Rptr. 897, 459 P.2d 225, the Supreme Court held the Legislature intended the pertinent language of section 209 “to exclude from its reach not only ‘standstill’ robberies [citation] but also those in which the movements of the victim are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself.  [Citations.]”  (Id. at p. 1139, 80 Cal.Rptr. 897, 459 P.2d 225—the “Daniels test.”)   The second prong of the Daniels test “includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes.  [Citations.]”  (People v. Rayford (1994) 9 Cal.4th 1, 13–14, 36 Cal.Rptr.2d 317, 884 P.2d 1369.)

13.   In instructing the jury on kidnapping to commit robbery, the court here told the jury in relevant part:“Kidnapping is the unlawful movement by physical force of a person without that person's consent for a substantial distance where such movement is not merely incidental to the commission of the robbery and where such movement substantially increases the risk of significant physical injuries to such person over and above those to which such person is normally exposed in the commission of the crime of robbery itself.“In order to prove such crime, each of the following elements must be proved:“1. A person was unlawfully moved by the use of physical force,“2. The movement of such person was caused with the specific intent to rob that person, and the person causing such movement had such specific intent to rob when the movement commenced,“3. The movement of such person was without that person's consent,“4. The movement of such person was for a substantial distance, that is, a distance more than slight or trivial, and“5. Such movement substantially increased the risk of significant physical injuries to such person over and above those to which such person normally would have been exposed in the commission of the crime of robbery itself.“Brief or trivial movements to facilitate the robbery are incidental to the robbery and are insufficient to constitute the crime of kidnap for robbery.   On the other hand, movements to facilitate the robbery that are for a substantial distance rather than brief are not incidental to the robbery.”

KREMER, Presiding Justice.

FROEHLICH * and HALLER, JJ., concur.