Opinion
A127615
10-24-2011
THE PEOPLE, Plaintiff and Respondent, v. DONZELL FRANCIS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(City and County of San Francisco Super. Ct. No. 209890)
Defendant Donzell Francis was convicted by a jury of committing forcible oral copulation (Pen. Code, § 288a, subd. (c)(2) ); second degree robbery (§ 211); assault (§ 245, subd. (a)(1)), with personal infliction of great bodily injury (§ 12022.7, subd. (a)); and false imprisonment (§ 236) against a single victim. He was sentenced to serve 17 years and eight months in prison.
All further unspecified statutory references are to the Penal Code.
Francis was linked to the crimes through DNA testing performed at the San Francisco Police Department (SFPD) Crime Lab. He contends that the court should have permitted him to cross-examine a witness from the lab about contamination that occurred there during testing in an unrelated case. He also says that the court should have exercised its discretion to exclude evidence of another sexual assault he committed. He submits that his sentences for assault and false imprisonment should have been stayed under section 654. We are not persuaded by these arguments and affirm the judgment.
I. FACTS
A. Charged Offenses
D.H., a transgender female, testified that she was walking to her residential hotel in the Tenderloin neighborhood of San Francisco around 3:00 a.m. on September 10, 2007, when she accepted Francis's offer to give her a ride home in his pickup truck. She gave Francis directions to her hotel, but he started talking about sex and instead drove her to an alley where he parked the truck, and locked the doors.
Francis took off D.H.'s clothes against her will, and demanded that she orally copulate him, saying, "Suck me, suck me, mother-fucker." When she refused, Francis put his penis in her mouth, punched her in the face, and choked her neck with his hand, causing her to pass out. When she regained consciousness, he told her to orally copulate him, and she complied because she feared for her life. After five minutes he ejaculated into her mouth, and hit her when she spit out his semen. Francis told her, "I'm going to rape you, and I'm going to kill you today." As D.H. struggled to get away, he kept hitting and choking her and she passed out again. When she woke up, her hands were tied together with a rope, and Francis forced his penis into her anus. She tried to get away, but he choked her and she passed out a third time. When she woke up her hands were untied, and Francis was holding a knife and saying he would kill her. He told D.H. that he wanted more sex and that he would hit her if she yelled, but she kept crying out for help, and lights came on in a nearby apartment. At that point he kicked her, naked, out of the truck, and drove away with her clothes, purse, and cell phone.
The sequence of the events D.H. described is sometimes difficult to follow from her testimony. She first said that she saw Francis with a knife after waking up the second time, but then said she saw the knife after waking up the third time. Our narrative is based on a reading of the testimony as a whole.
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D.H. got a long T-shirt from a person who had been sleeping on the sidewalk and ran home. Police were called to D.H.'s residential hotel, and she reported that she had been sexually assaulted and robbed. She was examined that morning at San Francisco General Hospital and found to have neck and facial injuries consistent with strangulation. Mouth and hand swabs taken from her tested positive for semen.
Police collected DNA samples from Francis in April 2008 in an unrelated investigation. Those samples were compared with the semen recovered from D.H., and the DNA profiles were found to match. Francis's DNA profile is found in one in 960 quadrillion African-Americans.
B. Uncharged Offenses
(1) J.V.
J.V., a transgender female, testified that she was attacked and sexually assaulted on the night of February 4, 2008. She was walking home to her residential hotel in San Francisco when she heard a loud sound coming from a car in an alley. When she went to investigate, someone struck her and she lost consciousness. She awoke inside a car, and an African-American man was grabbing her neck and hitting her in the face. She lost consciousness again. When she woke up she was on the hood of the car, and the man was sodomizing her with his penis in her anus. He was grabbing her by the hair and slamming her face against the car, and she again lost consciousness. When she woke up she was lying naked on the street.
The police were called and J.V. was taken to the hospital, where she stayed for several weeks. When she arrived at the hospital, her face was bruised and swollen, and her entire rectal area was red. Rectal swabs taken from her had sperm cells with a DNA profile matching that of Francis.
(2) E.S.
In January 1997, E.S. was a crack cocaine addict living in a Tenderloin hotel. On January 30th, she saw Francis selling crack on the street. At 3:00 a.m., she approached him and asked him if he had any crack. He said that he had some in his room, and she went with him to a hotel room, where he offered her crack in exchange for sex.
She was offended and tried to leave, but he grabbed her by the neck and said, "Bitch, you ain't going nowhere." He held her down on the bed on her stomach and told her to take her pants off. She took her pants down and he penetrated her vagina with his penis, saying, "Bitch, you been a pussy too long, and you need some of this dick. Ain't this dick good." She wept and asked him to let her go. He said, "Now, either you going to suck my dick or I'm going to go up in you ass." When he let her get up to turn around on the bed she ran for the door. As she grabbed for the door, Francis picked her up and "body-slammed [her] on the ground." She started screaming "rape," and heard a woman knock on the door and say, "Hey, what's going on in there?" Francis pushed her out into the hallway, naked from the waist down.
Around 4:00 a.m. that night, Patricia Elliott heard a woman in the hotel loudly crying out "no, no," and saw the woman, naked from the waist down, emerge from a room crying and looking terrified and humiliated. The woman "dropped to the floor" and said she had been raped. Monica Sullivan sat with her until the police arrived. Sullivan had heard a "loud boom," a "horrifying scream" that she would "never forget," and the woman was saying, "No, no, stop, stop, he's trying to rape me, he's trying to rape me." The woman told Sullivan that she and the man were having sex, and that she said "no" when he wanted to sodomize her.
E.S. was examined at San Francisco General Hospital and was found to have vaginal injuries consistent with nonconsensual sex.
II. DISCUSSION
A. Crime Lab Contamination
(1) Record
Evidence of a contaminated control sample of DNA was produced to the defense under a San Francisco Superior Court protocol requiring the prosecution to report "contamination events" at the SFPD Crime Lab during the period beginning six months before, and ending six months after, the testing in a defendant's case. The prosecution advised that, during the time frame of Francis's case, one incident of contamination occurred, which involved lab worker Tahnee Nelson. The prosecution moved to exclude evidence of the contaminated control sample because it occurred in an unrelated case. The prosecution argued that the contamination incident was irrelevant, or subject to exclusion under Evidence Code section 352 in view of its limited probative value.
SFPD lab supervisor Matthew Gabriel testified at an Evidence Code section 402 hearing that the contamination incident involving Nelson transpired during DNA tests in a burglary investigation that were performed months before those in Francis's case. Gabriel said that over a five-year period only two incidents of contamination had been found in DNA testing at the lab in 2,000 cases.
After the hearing, Francis filed a declaration from Marc Scott Taylor, director of a forensic DNA testing laboratory, stating that the Nelson incident "is related to the overall functioning of [the SFPD] laboratory, and may be an indication of a systemic problem of contamination due to analysts' or laboratory procedures. It demonstrates that mistakes can happen, and clarifies the false conclusion that DNA testing is infallible. [¶] . . . [¶] . . . To exclude this evidence would falsely imply that no contamination has occurred in this laboratory . . . ."
Taryn Mead, a criminalist at the SFPD lab, testified at trial that she developed the DNA profile of J.V.'s assailant from sperm recovered from J.V.'s rectal swabs. Mead's testing was used for a report prepared by Tahnee Nelson, which indicated that the DNA profile of the assailant matched that of Francis. Mead testified that the SFPD lab was accredited by the American Society of Crime Laboratory Directors, which meant that "our management personnel, procedures, equipment and facility . . . met the standards that are established for crime laboratories across the country." The lab was initially accredited in 2005, and reaccredited in 2009. As part of the accreditation process, DNA analysts are given proficiency tests twice a year by an outside agency. The tests, Mead explained, "are a quality assurance measure that we take to make sure that the analysts are following all procedures and obtaining the correct results."
During a recess after Mead's direct examination, defense counsel sought permission to cross-examine her about contamination at the lab. The court determined, based on Gabriel's testimony at the 402 hearing and its review of Taylor's declaration, that the reported contamination "did not affect or implicate this case at all," and excluded the evidence as irrelevant.
(2) Review
Francis maintains that the court violated his constitutional rights to confrontation and due process by "prohibit[ing him] from engaging in . . . appropriate cross- examination" (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [89 L.Ed.2d 674, 106 S.Ct. 1431]) concerning the SFPD lab because evidence of the contamination incidents was "of significant probative value to his defense" (People v. Reeder (1978) 82 Cal.App.3d 543, 553). We agree with Francis that "DNA evidence was the cornerstone of the prosecution case," but do not agree that the evidence of the contamination had any significant probative value here. The instances of contamination were far too isolated— one in the months surrounding the testing in this case and one other in the 2,000 cases the lab processed over five years—to permit any reasonable inference that the lab's procedures were generally flawed or that the testing in this case was unreliable. The probative value of those occurrences was at best very slight, and the court's ruling was well within its wide discretion to restrict cross-examination on matters that are "only marginally relevant." (Delaware v. Van Arsdall, supra, 475 U.S. at p. 679; see also People v. Hamilton (2009) 45 Cal.4th 863, 943.) The court did not err in excluding the contamination evidence.
Francis argues for a different conclusion based on Rufo v. Simpson (2001) 86 Cal.App.4th 573 (Rufo),but that case is distinguishable. In Rufo, where DNA testing supported the plaintiffs' position, the plaintiffs moved before trial to exclude anticipated defense testimony about contamination at a particular stage in the DNA testing the lab in question had performed in other cases. The testimony was ultimately excluded because the proof at trial showed possible contamination at a different stage in the handling of the evidence. (Id. at pp. 610-611.) Francis seizes on the court's observation that "at the time of the pretrial in limine motion it appeared the proposed testimony would be relevant to the weight of plaintiffs' scientific evidence." (Id. at p. 611.) But this observation does not assist him. The circumstances at trial showed the evidence of lab contamination was not relevant. Moreover, the Rufo court was referring to testimony about a "pattern" of DNA test results that "indicated a chronic and persistent contamination problem" at the lab. (Id. at p. 609; italics added.) No evidence of any such pervasive problem was presented here.
B. Uncharged Offense Against E.S.
Francis contends that the court erred when it overruled his objection to the introduction of evidence of the uncharged offense against E.S. The court found that the evidence was admissible under Evidence Code sections 1108 and 352. (Evid. Code, § 1108, subd. (a) [in prosecution for sex offense, evidence of other sexual offenses is admissible subject to Evid. Code, § 352]; People v. Walker (2006) 139 Cal.App.4th 782, 796 [Evid. Code, § 1108 permits admission of other sex offenses to prove propensity to commit charged sex offense].) "Like any ruling under [Evidence Code] section 352, the trial court's ruling admitting evidence under [Evidence Code] section 1108 is subject to review for abuse of discretion." (People v. Story (2009) 45 Cal.4th 1282, 1295.) There was no abuse of discretion in this case.
Francis argues that the offense against E.S. was too remote in time, and bore "no resemblance" to the charged crime. (People v. Falsetta (1999) 21 Cal.4th 903, 917 [factors affecting admissibility under Evid. Code, §§ 1108 and 352 include "possible remoteness" of other offense and "its similarity to the charged offense"].) However, neither of these considerations compelled exclusion of the evidence of the offense as a matter of law.
While "[n]o specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible" (People v. Branch (2001) 91 Cal.App.4th 274, 284), the 10-year-old offense here was less remote than other offenses that have been properly admitted under Evidence Code section 1108. (Ibid. [30-year-old offense admitted]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [20-year-old offense]; People v. Ewoldt (1994) 7 Cal.4th 380, 405 [12-year-old offense].) Nor were the offenses against D.H. and E.S. "completely dissimilar" as Francis claims. Each case involved: acts of violence, including throttling the victim by the neck; berating the victim with aggressive sexual remarks; and leaving the victim exposed to public view while totally or partially naked.
Moreover, the testimony describing the uncharged offense "was no stronger and no more inflammatory" than the testimony about the charged offenses—a "circumstance [that] decreased the potential for prejudice" and made it less likely that the "jury's passions were inflamed" by the uncharged offense. (People v. Ewoldt, supra, 7 Cal.4th at p. 405.) The assault against E.S. was deplorable but to a degree less egregious than the one against D.H. Thus, as in Ewoldt, it is unlikely that the jury disbelieved D.H.'s testimony about the charged offenses but nevertheless convicted Francis due to E.S.'s testimony about what happened to her. (Ibid.)
Further, no prejudice is apparent. Given the strength of the case involving D.H., including evidence of the similar assault of J.V. and the DNA evidence connecting Francis to the crimes against those victims, it is not reasonably probable that the outcome would have been different if the offense against E.S. had been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.)
C. Section 654
Francis argues that the court erred in rejecting his contention that his one-year sentence for assault and his eight-month sentence for false imprisonment had to be stayed under section 654 because they could not be imposed as consecutive sentences to oral copulation and robbery.
Section 654 prohibits multiple punishments for crimes charged in separate counts " „[i]f all of the offenses were incident to one objective . . . .' " (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) The statute does not apply if a defendant had "separate, although sometimes simultaneous, objectives . . . ." (Id. at p. 1212.) "Whether section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its determination. [Citations.] Its findings will not be reversed on appeal if there is any substantial evidence to support them. [Citations.] We review the trial court's determination in the light most favorable to the respondent and presume the existence of every fact the trial court could reasonably deduce from the evidence. [Citation.]" (People v. Jones (2002) 103 Cal.App.4th 1139, 1143.)
Francis argues that he cannot be separately punished for assault and false imprisonment because those offenses were simply the means by which the crimes of forcible oral copulation and robbery were committed. (E.g., Neal v. State of California (1960) 55 Cal.2d 11, 20 [defendant convicted of attempted murder could not be punished for arson where arson was means by which murder was attempted]; People v. Jaquette (1967) 253 Cal.App.2d 38, 49 [no separate punishment for kidnapping that was incidental to rape].) We disagree.
The assault conviction could have been based on the repeated acts of strangulation D.H. reported, and there is nothing in the record that compels a conclusion that Francis had to choke D.H. to the point of unconsciousness in order to sexually assault and rob her. D.H. testified that she is five feet, two inches tall, and weighed 100 pounds at the time of the crimes. The record indicates that Francis is five feet, eight inches tall and powerfully built. E.S. described Francis as "very buff," someone "really muscular in the upper chest area and arms." Patricia Elliott testified that Francis was "built decent," and "look[ed] like he took care of himself." J.V. said that Francis had a "thick build." D.H. described Francis as "big and scary." It appears that Francis could have easily overpowered D.H. without strangling her, and thus that the strangulation was the sort of "gratuitous act of violence against a helpless . . . victim which has traditionally been viewed" as separately punishable notwithstanding section 654. (People v. Nguyen (1988) 204 Cal.App.3d 181, 190.)
D.H.'s testimony that she was tied up with a rope could support the false imprisonment sentence for an act that was "gratuitous" and distinct from the other offenses. Even though the jury rejected an allegation that Francis had "tied and bound the victim" in connection with the oral copulation, that finding did not mean it disbelieved that D.H. was bound with a rope, because she reported being tied up in connection the alleged sodomy. Since the jury acquitted Francis of the charge of sodomy by force, none of the crimes of which he was convicted were necessarily facilitated because he tied and bound the victim and he could be separately punished for that act.
III. CONCLUSION
The judgment is affirmed.
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Siggins, J.
We concur:
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Pollak, Acting P.J.
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Jenkins, J.