PEOPLE v. BARKER (1980)

Donald Barker appeals from a jury verdict finding him guilty of three counts of robbery (Pen.Code, § 211), two counts of forcible rape (Pen.Code, § 261.3), one count of assault with intent to commit rape (Pen. Code, § 220), three counts of first degree burglary (Pen.Code, § 459), and one count of possession of a gun by an ex—felon (Pen.Code, § 12021). The jury also found to be true nine separate allegations of infliction of great bodily injury (Pen.Code, § 12022.7), three separate allegations of firearm use (Pen.Code, § 12022.5) and a prior felony conviction for forgery (Pen.Code, § 470).

On November 17, 1978, Chantelle P., 70 years of age and living alone, was attacked. She was watching television when she became aware of someone in her apartment. Her assailant hit her and took $100 from her purse, threatening to kill her at the same time. Chantelle saw a dark gun in the man's possession. She suffered various injuries and was later taken to the hospital.

Chantelle identified appellant as her assailant in court, although she was unable to identify appellant in a physical lineup. During the lineup she said one individual was similar in appearance and another similar in voice to her assailant; however, neither was appellant. At trial she identified a gun later found at appellant's residence as similar to the gun used by her assailant.

On November 28, 1978, Lillian M., 73 years of age and living alone in the apartment next to Chantelle, was attacked. She testified that a man entered her apartment, beat her around the face, and tried to rape her. Although Lillian thought she had been able to prevent the rape, the doctor on duty in the emergency room testified that he found sperm in her vagina and public hairs, concluding that she had lost consciousness and had indeed been raped. Her assailant took $16 in change and some other items. Lillian was taken to the hospital where she remained several days, suffering from various injuries.

At trial, Lillian was unable to make an identification.¹ However, she previously had picked appellant as the assailant at both a photographic lineup and the physical lineup.

On December 4, 1978, Inez H., 84 years of age and living alone, was attacked. She had just gone to bed when she became aware of a person by the side of her bed. The man put his hands over her face and hit her many times. He knocked her down and raped her. A watch was taken. Inez was taken to the hospital where her condition was critical for the first three days.

Inez identified appellant at a physical lineup and in court. All three victims described their assailant as wearing dark clothing, cap, and scarf or bandana. Lillian and Inez testified their assailant wore gloves.

After the three attacks occurred, the police arranged for surveillance of the two buildings occupied by the victims. On December 11, 1978, Detective Harm saw appellant walking down one of the streets. Appellant was wearing a brown cap, green and white scarf, brown jacket, gloves, levis and tennis shoes. After walking down the street, appellant stepped on his tip—toes and peered over the fence bordering one of the buildings. He continued walking and peered over the fence a second time.

At this point, appellant was approached by one of the officers. After looking at appellant's shoes, which matched certain shoe prints taken from the scene of the crimes, appellant was arrested.

Officer Pratt and other officers made a consent search of appellant's home where they found a loaded .25 caliber automatic handgun. After appellant's arrest, there were no further incidents similar to the three involved in this case.

Appellant's public hair sample was consistent in a number of characteristics with a hair found in Chantelle's robe. Appellant's blood and saliva type matched that of her assailant. This was consistent with only 33-35 percent of the black population.

Appellant claimed he did not commit the assaults. His girlfriend supplied a partial alibi.

Appellant's first contention on appeal is that under the standards of People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240, for the admissibility of expert testimony based upon a new scientific technique, the trial court erred in permitting Dr. Robbins to testify that the shoeprints outside Lillian's and Inez' apartments were left by appellant's shoes.

At the in limine qualifications hearing, defense counsel offered the testimony of Dr. Timothy White for the purpose of showing that Dr. Robbins' technique of shoeprint and footprint analysis is not a generally accepted procedure in the scientific community. The trial court refused to hear the defense witness and ruled that any objections to Dr. Robbins' testimony would go to the weight of the evidence rather than to admissibility.

Dr. Robbins, a physical anthropologist at the University of North Carolina, testified as a prosecution expert witness in the field of forensic anthropology. She did a comparison of the plaster—of—paris casts of shoeprints found outside Inez' and Lillian's apartments with the shoes appellant was wearing at the time of his arrest. She testified extensively as to her general background in physical and forensic anthropology, her scientific methodology for examining shoeprints and footprints and her position that each person possesses a “unique footprint or shoeprint.” Her conclusion was that all the left shoeprints in question were definitely made by appellant's left shoe, and that the right shoeprints were even more definitely made by the appellant's right shoe.

Dr. Robbins conceded that footprint and shoeprint analysis did not have the same degree of acceptance in the forensic sciences as did fingerprinting analysis. She considered herself the chief proponent of the “unique shoeprint” concept, in that she was the only person presently working on this subject.

It is appellant's position that this evidence falls into the category of scientific evidence that has not yet reached the stage of reliability through acceptance by the scientific community. There are no cases that deal specifically with shoeprint analysis.

“[A]dmissibility of expert testimony based upon the application of a new scientific technique traditionally involves a two—step process: (1) the reliability of the method must be established, usually by expert testimony, and (2) the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject. [Citations.] Additionally, the proponent of the evidence must demonstrate that correct scientific procedures were used in the particular case.” (People v. Kelly, supra, 17 Cal.3d at p. 30, 130 Cal.Rptr. 144, 549 P.2d 1240, emphasis omitted.)

Despite the “general acceptance” rule, the People contend that Dr. Robbins' shoeprint analysis testimony was properly admitted. They contend that an exception to the general rule has been carved out in the “bite—mark identification” cases.

In People v. Marx (1975) 54 Cal.App.3d 100, 110, 126 Cal.Rptr. 350, the court stated that the “general acceptance” rule finds its rational basis in the degree to which the trier of fact must accept, on faith, scientific hypotheses not capable of proof or disproof in court and not even generally accepted outside the courtroom. For example, with lie detector tests, the trier of fact is required to rely on the specialized testimony of the polygrapher, verified at most by marks on a graph, to which the expert's hypotheses gives some relevant meaning. Similarly, total reliance on unfamiliar scientific methodology is required for the voice spectrogram, blood tests, breathalyzer tests and radar.

With respect to bite—mark identification, the Marx court stated: “What is significantly different about the evidence in this case is this: the trier of fact, here the court, was shown models, photographs, X—rays and dozens of slides of the victim's wounds and defendant's teeth. It could see what we have seen in reviewing the exhibits to determine the admissibility of the evidence․ Thus the basic data on which the experts based their conclusions were verifiable by the court.” (Id., at p. 111.)

In People v. Watson (1977) 75 Cal.App.3d 384, 142 Cal.Rptr. 134, the court stated, “[a]s Marx indicates, while bite marks identification has not reached a level of scientific development comparable to well—recognized techniques of identification through dentition, such evidence is nevertheless admissible when based upon ‘scientifically and professionally established techniques—X—Rays, models, … photography—to the solution of the particular problem which, though novel, was well within the capability of those techniques.”’ (Id., at p. 401, 142 Cal.Rptr. 134.)

Applying the Marx reasoning, the court in People v. Slone (1978) 76 Cal.App.3d 611, 143 Cal.Rptr. 61, stated: “The Marx court distinguished the bite mark evidentiary presentation from other scientific—test evidence, of both the admissible variety such as blood tests, breathalyzer tests and radar, and the inadmissible variety such as the lie detector test and the voiceprint test, on the ground that there was a more trustworthy basis for admissibility of the bite—mark—identification evidence.” (Id., at p. 624, 143 Cal.Rptr. 61, emphasis in original.) Slone found that bite—mark identification had presently reached a level of general acceptance in the scientific community.

There is a fundamental difference in the voiceprint identification testimony in People v. Kelly, supra, 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240, and the shoeprint identification testimony in this case. Voiceprints, and similar scientific tests such as lie detector tests, require scientific assumptions and hypotheses which cannot be proven in the courtroom and which lie beyond the knowledge of the average juror. The shoeprint testimony in the instant case was based on a comparison of photographs and plaster castings with actual shoes. The jurors could see the photographs, the castings and the shoes. They could follow the testimony of Dr. Robbins and either accept or reject it. Likewise, they could do the same with the testimony of the defense experts. Accordingly, the testimony was properly received.

Appellant's contention that Dr. Robbins was not properly qualified as an expert is also without merit. “The trial court is given considerable latitude in determining the qualifications of an expert and its ruling will not be disturbed on appeal unless a manifest abuse of discretion is shown.” (Cavers v. Cushman Motor Sales, Inc. (1979) 95 Cal.App.3d 338, 350, 157 Cal.Rptr. 142; People v. Kelly, supra, 17 Cal.3d at p. 39, 130 Cal.Rptr. 144, 549 P.2d 1240.) Dr. Robbins is a leader in her field, a Ph.D. with practical experience in the forensic sciences since 1960. She has worked specifically on footprint and shoeprint analysis since 1972 and has consulted on a number of other cases on the subject of shoeprint and footprint analysis. The court did not abuse its discretion in determining she was an expert.

Appellant is also critical of his sentencing. He was sentenced to state prison for a total term of 22 years and 8 months, exclusive of presentence custody credit. Appellant was sentenced to five years for the upper base term of rape (count III), three years for the great bodily injury enhancement, and two years for firearm use. He was also sentenced for one year on the subordinate offense of robbery (count I), with a one—year great bodily injury enhancement, and eight months for a firearm use enhancement; eight months for possession of a gun by an ex—felon (count IV); one year for robbery (count V), with a one—year great bodily injury enhancement; one year for robbery (count VIII), with a one—year great bodily injury enhancement; one year and four months for rape (count X), with a one—year great bodily injury enhancement. Pursuant to Penal Code section 667.5, subdivision (b), appellant's sentence was also enhanced by an additional year due to a prior felony conviction for forgery.

Appellant submits that under subdivision (a) of Penal Code section 1170.1, as interpreted by the California Supreme Court in People v. Harvey (1979) 25 Cal.3d 754, 759—761, 159 Cal.Rptr. 696, 602 P.2d 396, the trial court erred in enhancing his sentence by four years and eight months.

Penal Code section 1170.1 relates to calculation of the term of imprisonment for offenses ordered to run consecutively.²

Section 667.5 referred to in subdivision (a) of section 1170.1, pertains to the subject of enhancement by reason of prior prison terms imposed on a defendant. Subdivision (a) of the section provides for specified enhanced terms where the offense was one of the “violent felonies” specified in subdivision (c)³ thereof.

In People v. Harvey, supra, 25 Cal.3d at pp. 759—761, 159 Cal.Rptr. 696, 602 P.2d 396, the California Supreme Court held that when consecutive offenses are imposed, subdivision (a) of Penal Code section 1170.1 permits enhancement of subordinate terms only for those specific offenses listed in subdivision (c) of section 667.5 not for those offenses that would be included within the general “catch all” provision of subdivision (c)(8).

Therefore, with respect to the issue of whether a subordinate consecutive offense may be enhanced pursuant to section 1170.1, subdivision (a), the court held that the offense of robbery with personal use of a firearm is not one of the offenses specifically enumerated in subdivision (c) of section 667.5.

In explaining the rationale of its holding, the court indicated that a subordinate offense also would not be deemed to be listed under subdivision (c) of section 667.5, for purposes of additional enhancement pursuant to subdivision (a) of section 1170.1, if the enhancement at issue was great bodily injury as opposed to firearm use. The Harvey court stated, “… to construe section 1170.1, subdivision (a), as permitting the enhancement of defendant's consecutive offense solely by reason of his commission of a felony involving use of a firearm would result in a troublesome anomaly: As so interpreted, section 1170.1 would permit enhancement for firearm use in any case involving firearm use, thereby seeming to render wholly unnecessary the section's specific statutory reference to the various violent felonies described in section 667.5, subdivision (c). The foregoing inconsistency would also extend to enhancements under section 12022.7 (infliction of great bodily injury), for these enhancements are also included within the statutory definition of ‘violent felonies' under section 667.5, subdivision (c)(8)․ [¶] We think it unlikely that the Legislature intended to impose an enhancement for firearm use or great bodily injury in every case involving such factors, given the statutory reference in section 1170.1, subdivision (a), to section 667.5․ [¶] Thus, properly construed, section 1170.1, subdivision (a), permits enhancement only for those specific offenses listed in section 667.5, subdivision (c).” (People v. Harvey, supra, 25 Cal.3d at pp. 760-761, 159 Cal.Rptr. 696, 602 P.2d 396, emphasis partially added.)

In the instant case, the trial court imposed four separate one—year enhancements for great bodily injury on the subordinate offenses of robbery and assault with the intent to commit rape. A separate eight—month enhancement was also imposed for firearm use on the subordinate offense of robbery. Appellant argues that since these subordinate offenses are not specifically listed in subdivision (c) of Penal Code section 667.5, enhancement was improper.

Appellant also contends that he was improperly sentenced for more than five years on subordinate terms for consecutive offenses not listed in subdivision (c) of section 667.5. Penal Code section 1170.1, subdivision (a), provides in pertinent part: “In no case shall the total of subordinate terms for consecutive offenses not listed in subdivision (c) of section 667.5 exceed five years.”

The prior felony conviction for forgery used to enhance appellant's sentence by an additional year is not a subordinate term and therefore may be imposed irrespective of the five—year limitation. When the improper consecutive enhancements are subtracted from the sentence, the aggregate term for the consecutive sentences involved in this issue is less than five years. Therefore, this issue does not need to be decided. The maximum sentence, exclusive of good time/work time credit, totals eighteen years.

Finally, appellant contends that he is entitled to good time/work time credit for the days he spent in presentence custody. People v. Sage (as modified 1980) 26 Cal.3d 498, 165 Cal.Rptr. 280, 611 P.2d 874 recently held to deny the “detainee/felon” conduct credit for presentence jail time constitutes a denial of equal protection of the law. Insofar as such credit is extended to “detainee/misdemeanants” under section 4019 of the Penal Code, there is no rational basis for, much less a compelling state interest in denying presentence conduct to detainees/felons.

Judgment is affirmed. The cause is remanded to the trial court for resentencing in accordance with the views expressed herein.

FOOTNOTES

1.  Appellant, who had been clean shaven, began growing a beard and mustache immediately upon his arrest.

2.  Subdivision (a) of Penal Code section 1170.1 provides in pertinent part: “… the aggregate term of imprisonment … shall be the sum of the principal term, [and] the subordinate term․ The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any enhancements imposed pursuant to Section 12022, 12022.3, 12022.5, 12022.6, 12022.7, or 12022.8. The subordinate term for each consecutive offense shall consist of one—third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall exclude enhancements when the consecutive offense is not listed in subdivision (c) of Section 667.5 but shall include one—third of any enhancement imposed pursuant to Section 12022, 12022.5 or 12022.7 when the consecutive offense is listed in subdivision (c) of Section 667.5.” (Emphasis added.)

3.  Subdivision (c) of section 667.5 provides in pertinent part: “For the purposes of this section ‘violent felony’ shall mean any of the following: (1) murder or voluntary manslaughter. (2) Mayhem. (3) Rape as defined in subdivision (2) and (3) of Section 261. (4) Sodomy by force, violence, duress, menace or threat of great bodily harm. (5) Oral copulation by force, violence, duress, menace, or threat of great bodily harm. (6) Lewd acts on a child under 14 as defined in Section 288. (7) Any felony punishable by death or imprisonment in the state prison for life. (8) Any other felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in Section 12022.5.” (Emphasis added.)

MILLER, Associate Justice.

TAYLOR, P. J., and SMITH, J., concur.