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Birotte v. Superior Court of Los Angeles County

September 8, 2009


ORIGINAL PROCEEDING; application for writ of mandate. Drew E. Edwards, Judge. Petition denied. (Los Angeles County Super. Ct. No. BA295261)

The opinion of the court was delivered by: Perluss, P. J.


Lorenzo Birotte was charged with rape, forcible oral copulation and forcible sodomy more than 10 years after the crimes were committed and more than one year after a report first identified him by name as a suspect based on deoxyribonucleic acid (DNA) testing. The statute of limitations for the crimes charged is ordinarily 10 years. (Pen. Code, § 801.1, subd. (b).)*fn1 However, section 803, subdivision (g)(1) (section 803(g)(1)), permits a criminal complaint to be filed "within one year of the date on which the identity of the suspect is conclusively established by DNA testing" if certain conditions are met.

When is a suspect‟s identity "conclusively established by DNA testing" within the meaning of section 803(g)(1)? Based on the language of the statute itself, as well as the legislative history of Assembly Bill No. 1742 (2000-2001 Reg. Sess.), which added section 803(g)(1) to the Penal Code, the additional one-year limitations period does not begin at least until qualified laboratory personnel fully evaluate and verify the data generated by the initial, automated computer match between the DNA profile developed from a suspect‟s biological sample and the DNA profile developed from evidentiary sources, including biological materials left by perpetrators at crime scenes or obtained from victim examinations. Indeed, although as a practical matter it may eliminate any limitations period for crimes to which section 803(g)(1) applies, a reasonable interpretation of the statutory language, viewed in context, suggests the additional one-year limitations period does not commence until a biological sample has been obtained with a sufficient chain of custody for the DNA profile developed from it to be admissible in evidence, that DNA profile has been matched to a DNA profile developed from crime scene evidence and statistical analyses have been completed that establish with sufficient certainty the suspect is the source of the evidentiary profile. Because the criminal complaint was filed in this matter within one year of even the earliest of those possible trigger dates, the trial court properly denied Birotte‟s motion to dismiss the charges as barred by the statute of limitations. Accordingly, the petition for a writ of mandate is denied.


1. The Sexual Offenses

According to her testimony at Birotte‟s preliminary hearing on June 20, 2006, C.H., who did not have a telephone, was talking to her mother from a telephone booth during the early morning hours of August 8, 1995 when Birotte, whom she identified in court as her assailant, came up behind her, grabbed her around the neck and dragged her to his car. After she was forced into the front passenger seat, C.H. saw a large knife lying near the manual gearshift. Birotte locked the car doors, drove to a dark area, parked, put the passenger seat in a reclined position and raped C.H.*fn2

Birotte drove C.H. back to the telephone booth and unlocked the car doors. C.H. ran from the car and then called her mother from a different telephone booth to tell her what had happened. C.H.‟s mother called the police, who interviewed C.H. at her home. C.H. subsequently went to the hospital for an examination, including the preparation of a rape kit.

2. The Identification of Birotte as a Suspect Through DNA Testing

a. The Identification Process Generally

At the evidentiary hearing on Birotte‟s motion to dismiss, Linton Von Beroldingen, a criminalist manager in the data bank program at the California Department of Justice, Jan Bashinski Richmond DNA Laboratory (DOJ Lab), testified about the DNA testing process that identified Birotte as a suspect.

The DOJ Lab maintains a database of DNA profiles referred to as CODIS, an acronym for Combined DNA Index System. CODIS contains two categories of DNA profiles: "offender profiles"*fn3 and "forensic unknown profiles."

Offender profiles are developed from buccal swab samples or other biological samples collected from, among others, individuals convicted of certain felonies pursuant to the DNA and Forensic Identification Database and Data Bank Act of 1998 (DNA Data Bank Act) (§§ 295-300.3). Offender profiles typically identify numerical specifications for forms of genetic material at 13 or 15 loci*fn4 and are identified in CODIS by a number, not a name, to maintain privacy and to prevent misuse of the information. Personnel working for the CODIS unit of the DOJ Lab are responsible for developing the offender profiles from DNA samples and uploading those profiles into CODIS.

Forensic unknown profiles are developed from evidentiary sources-usually biological materials left by perpetrators at crime scenes or obtained from victim examinations-provided by law enforcement agencies to one of approximately 20 government forensic laboratories, including a casework laboratory within the DOJ Lab,*fn5 or private laboratories that provide the data to a government laboratory for uploading into CODIS. Because evidentiary sources of DNA may have been subjected to environmental conditions that degrade the samples or may for other reasons have minimal amounts of DNA present, forensic unknown profiles may not have numerical specifications for forms of genetic material at all 13 or 15 loci as do offender profiles.

Generally, the CODIS unit performs a weekly, routine computer search that compares offender profiles to forensic unknown profiles. A match between an offender profile and forensic unknown profile of at least seven loci is considered a "candidate match"; and a match detail report is generated that lines up both profiles, identified at that point only by code numbers, for comparison. The candidate match is reported to the laboratory that submitted the forensic sample. Employing a utility within the computer software, the submitting laboratory can then designate the match as an "offender hit," which triggers a confirmation process by the CODIS unit. Once the confirmation process has been initiated, CODIS unit personnel retrieve the offender sample from storage and analyze it again to confirm the data initially uploaded into CODIS are correct. Personnel also retrieve the information card submitted with the offender sample, which contains identifying information, such as the offender‟s fingerprints and California state identification number.

After measures are taken to confirm the information card is accurate and the offender profile uploaded into CODIS is correct, the CODIS unit prepares a "hit notification" document. This document and supporting records are placed in a file that is then subject to a technical review, which includes reviewing the records of the DNA data analysis, and an administrative review to ensure, among other things, no clerical errors have been made that might lead to the identification of the wrong suspect.*fn6 Once those reviews have been completed, the hit notification document is forwarded to the laboratory that submitted the forensic unknown profile identifying by name the person whose offender profile matched it. The submitting laboratory is responsible for notifying the law enforcement agency of the suspect‟s identity.

According to Von Beroldingen, the CODIS unit‟s job is completed after it has notified the submitting laboratory of the suspect‟s identity. However, in cases in which the submitting laboratory is the casework unit of the DOJ Lab, the casework unit reviews the CODIS unit file associated with the offender match to verify it. The casework unit has more complete data about the forensic unknown profile than the CODIS unit. As Von Beroldingen explained, "[The CODIS unit is] looking at an abstract of the data that [the casework unit has]. We‟re looking at sets of numbers. But the data that they have [are] electrophoretic in nature and it has more to it than that abstraction. And there are occasions on which that becomes important. In the simplest case evaluation of the electropherograms will lead to the same conclusion as evaluation of the comparison of the described alleles in a chart, but it‟s possible that that might not be the case."

Once the casework unit verifies the match, it generates a report that is sent to the law enforcement agency that provided the evidentiary material from which the forensic unknown profile was developed informing it of the offender match and the identity of the suspect. That report is also subject to a technical and an administrative review before it is considered complete.

b. The Identification of Birotte

On April 17, 2003 Los Angeles Police Department Scientific Services Division (LAPD Lab) personnel screened items from C.H.‟s rape kit and determined sperm was present on a vaginal swab that could be tested for DNA.*fn7 The LAPD Lab forwarded the testable sample to the casework unit of the DOJ Lab, which in a report dated June 11, 2003 stated a male DNA profile had been detected for the sperm extracted from the swab. On June 24, 2003 this forensic unknown profile was uploaded into CODIS.

On March 19, 2004 a DNA sample was collected from Birotte at the Los Angeles County Sheriff‟s Department after he had been convicted of rape and sexual battery in another case. On November 9, 2004 the DNA profile developed from Birotte‟s sample was uploaded into CODIS. On November 12, 2004 a candidate match was generated during the weekly computerized comparison of offender profiles to forensic unknown profiles: Thirteen loci from Birotte‟s offender profile, identified only by a number at that time, matched 13 loci from the forensic unknown profile created from the sperm found on the vaginal swab in C.H.‟s rape kit.

In a hit notification report dated December 14, 2004 to the casework unit director, a criminalist with the CODIS unit identified Birotte by name as the offender matched to the forensic unknown profile from C.H.‟s rape kit. The report also noted there had been a match between Birotte and a different forensic unknown profile. (The sexual offense in the second matched case, involving the victim M.R., had occurred on August 8, 2000.) The report stated, "A new reference sample from Lorenzo Birotte should be obtained and analyzed by the casework laboratory." The bottom of the report indicated the technical review had been completed on December 15, 2004 and the administrative review had been completed on December 17, 2004. According to Von Beroldingen, the hit notification report was hand-delivered to the casework unit on December 17, 2004.

On December 23, 2004 casework unit criminalist Lillian Tugado sent an email to Larry Blanton of the LAPD Lab informing him the forensic unknown profiles from C.H.‟s and M.R.‟s cases "hit to each other and also hit to offender Lorenzo Birotte . . . . [¶] To date, we have not received the hit report for [M.R.‟s case], but this case is addressed in the hit report for [C.H.‟s case]. We will issue a formal report once we receive this second hit report."

Blanton, who read Tugado‟s email on December 27, 2004, issued a database hit notification dated December 27, 2004 identifying Birotte as the offender in C.H.‟s case and stating, "This information may be acted upon immediately. A confirmation of this hit should be completed prior to trial. Cold hit protocol requires that a new reference sample be obtained from the convicted offender. Once this sample has been booked, please contact the Serology/DNA Unit . . . and request a Cold Hit ...

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