Filed 3/10/14; pub. order 4/7/14 (received from court 4/14/14; see end of opn.)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                             DIVISION THREE


THE PEOPLE,

    Plaintiff and Respondent,                                      G047523

         v.                                                        (Super. Ct. No. 11CF3304)

PEDRO AREVALO,                                                     OPINION

    Defendant and Appellant.



                  Appeal from a judgment of the Superior Court of Orange County, Sheila F.
Hanson, Judge. Reversed.
                  Kyle D. Smith, under appointment by the Court of Appeal, for Defendant
and Appellant.
                  Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland,
Stacy Tyler, and Parag Agrawal, Deputy Attorneys General, for Plaintiff and Respondent.
              A jury convicted Pedro Arevalo of second degree commercial burglary. On
appeal, Arevalo contends the sole DNA evidence linking him to the burglary is
insufficient to support his conviction. The Attorney General argues the presence of
Arevalo’s DNA on a rock purportedly used to effect entry to the crime scene and expert
testimony about latent DNA is sufficient evidence to infer Arevalo’s guilt. This DNA-
only issue is somewhat unique and we rely on similar fingerprint-only cases to guide our
analysis. (See Mikes v. Borg (9th Cir. 1991) 947 F.2d 353 (Mikes).) The critical question
before us is whether Arevalo’s DNA on a rock at the crime scene is, by itself, sufficiently
substantial to allow any rational trier of fact to infer beyond a reasonable doubt Arevalo
committed the burglary. As we explain, standing alone, a defendant’s DNA on an object
is insufficient evidence to support a conviction absent any facts showing the defendant’s
contact with the object could only have occurred during the commission of the crime.
Therefore, because there is no evidence of when, where, or how Arevalo came in contact
with the rock or any evidence connecting him with the burglary, we find the mere
presence of his DNA is insufficient evidence to convict him of burglary. The judgment is
reversed.
                                             I
              An Loc Dinh Bui and his wife owned and operated a nail salon at a strip
mall on North Tustin Avenue in Santa Ana. The salon’s front door was comprised of six
glass panes. One morning in December 2009, Bui arrived at the salon to open the
business and found the pane of glass nearest the doorknob on the front door shattered and
the door closed but unlocked. The salon did not have an alarm or surveillance cameras.
Bui found missing from the salon two televisions, $200 cash, a CD player, and a DVD
player.
              Police arrived at the salon shortly after Bui reported the break-in. Leonard
Correa, a forensic specialist, conducted a crime scene investigation. Correa swabbed



                                             2
several items for DNA samples, including a rock he discovered underneath a nail station
inside the salon.
               One year later, a forensic scientist from the Orange County Crime Lab
(Crime Lab) notified police the rock’s swab sample identified a DNA profile that
distinguished Arevalo as a possible match. Police were unable to contact Arevalo until
November 2011, at which time a police detective collected a specimen of Arevalo’s DNA
using a cheek swab. Crime Lab analysts tested the specimen and determined it matched
the DNA sample extracted from the rock.1
               Based only on this DNA match, an information charged Arevalo with
second degree commercial burglary (Pen. Code, §§ 459, 460, subd. (b)); his jury trial
commenced in August 2012. During the trial, the prosecution premised its case on the
theory Arevalo used the rock to break the glass pane, and in so doing transmitted his
DNA onto it.
Bui’s Testimony
               At the jury trial, Bui testified the salon opened around 9:00 a.m. but he
usually arrived about 15 minutes before opening to clean up. He explained cleaning up
entailed vacuuming and using a wet towel to wipe the nail stations and front desk. Bui
stated he was the last person to leave the salon the night before the burglary occurred.
His practice upon closing was to lock the door with one key. Bui called 911 when he
discovered the broken glass pane, and only he and his sibling entered the salon before
police arrived about 10 or 15 minutes later. Bui testified one of the missing televisions
had been removed from a wall-mounted bracket that was still attached to the wall when
he arrived.

1             During the trial, a DNA expert witness explained the frequency of the DNA
found on the rock is rarer than one in one-trillion unrelated individuals; this constituted a
“very rare” frequency. She explained although Arevalo cannot be excluded as the person
whose DNA was on the rock, the DNA “match[ed]” Arevalo’s DNA specimen; she
concluded they were the same DNA.

                                              3
Correa’s Testimony
              Correa testified he investigated the crime scene on the day Bui reported the
burglary. He testified there were two landscaped areas at the strip mall where the salon
was located. Correa stated the glass pane nearest the doorknob of the salon’s front door
was smashed, and the only broken glass he located in the salon was on the floor
immediately inside the doorway. He testified detached cables hung about 30 inches
below the ceiling where one of the missing televisions had been mounted. Correa
testified there were about five nail stations aligned from front to back on the east end of
the salon. He Correa explained the nail stations were to the left hand side upon entering
the salon’s front door. He located a rock on the floor underneath the third nail station
from the front. Correa could not remember the rock’s color or describe any details about
it, but he recalled it was “handheld”—or could fit in the palm of his hand.
              Correa testified he looked for potential biological evidence, such as DNA,
in isolated areas of disturbance. He explained taking samples from commonly handled
areas at a business, like a doorknob, is unhelpful to the investigation because there could
be hundreds of people leaving their DNA behind. Thus, Correa did not swab the
doorknob with the lock for DNA because he considered it a high-traffic item. Rather,
Correa swabbed the detached television and DVD cables because he believed they were
in isolated areas. Correa also swabbed the rock he had located under the nail station for
DNA. He testified the rock interested him because it did not belong to the business.
Correa opined the rock was thrown through the glass pane to allow a person to reach
inside and unlock the door to enter the salon.
              Correa testified he processed the salon for any latent fingerprints and
employed the same “isolated area[]” methodology used for biological evidence
collection. He did not keep a log of the areas he attempted to obtain fingerprints from,

                                              4
but he recalled dusting the missing television’s wall-mount. No fingerprints developed
on any surface he dusted.
Jillian Zoccoli’s Testimony
              Jillian Zoccoli, a forensic scientist at the Crime Lab and qualified DNA
expert witness, testified she worked on the DNA evidence in this case. Zoccoli testified
DNA analysis can be practiced on all kinds of objects a person comes in contact with, or
even near contact with. Zoccoli explained a person could transmit DNA onto an object
with blood, semen, saliva, or even the sweat from their hands just from handling the
object. She stated someone could transmit DNA onto an object simply by speaking over
it. She also explained it was possible, but unlikely, for someone to touch an object with
their bare skin and not leave any DNA. Zoccoli further explained it is possible for a
person wearing gloves that handled an object to leave undisturbed any latent DNA
already existing on the object and not transmit their own DNA onto it.
              Zoccoli stated that out of the three DNA swabs taken at the crime scene,
only the rock’s swab was sufficient to test. She stated the DNA source on the rock
originated from an individual male person, rather than a mixture of multiple persons’
DNA, and her analysis indicated the DNA found on the rock matched Arevalo’s DNA
profile. However, Zoccoli could not opine how Arevalo transmitted his DNA onto the
rock because, she explained, DNA analysis cannot make any determinations on the
method by which someone placed their DNA on an object. Additionally, Zoccoli
testified she had no way of knowing where the rock was located when Arevalo came in
contact with it.
              Zocolli also explained DNA analysis cannot determine how long DNA had
been on an item. She testified someone’s DNA could remain on a rock for a year, but
explained certain environmental factors can degrade latent DNA. Specifically, Zoccoli
explained environmental factors such as sun exposure, rain, and dirt affect how long
DNA would remain on an object. But Zoccoli testified she could not offer an opinion on

                                            5
how long Arevalo’s DNA had been on the rock or whether environmental factors affected
the DNA sample in this case.
                                              II
A. Standard of Review
              “In reviewing a sufficiency of evidence challenge, we view the evidence in
the light most favorable to the verdict and determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
(People v. Gonzalez (2012) 54 Cal.4th 643, 653.) “‘“[We] must review the whole record
. . . to determine whether it discloses substantial evidence—that is, evidence which is
reasonable, credible, and of solid value . . . .” [Citation.]’ [Citation.] ‘Substantial
evidence includes circumstantial evidence and any reasonable inferences drawn from that
evidence. [Citation.]’ [Citation.]” (People v. Curry (2007) 158 Cal.App.4th 766, 778.)
              “By definition, ‘substantial evidence’ requires evidence and not mere
speculation. In any given case, one ‘may speculate about any number of scenarios that
may have occurred . . . . A reasonable inference, however, “may not be based on
suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or
guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather
than . . . a mere speculation as to the probabilities without evidence.”’ [Citations.]”
(People v. Cluff (2001) 87 Cal.App.4th 991, 1002; see People v. Hughes (2002)
27 Cal.4th 287, 365 [“inference is not reasonable if it is based only on speculation”]; see
also People v. Redmond (1969) 71 Cal.2d 745, 755 [evidence raising a mere suspicion
cannot support a conviction because suspicion is not evidence].)
B. Burglary Elements
              The elements of burglary are: Entry into a building with the intent to
commit a felony or theft. (Pen. Code, § 459.) Entry occurs when part of a person’s body
or an instrument, like a rock, penetrates the outer boundary of a building. (See Magness
v. Superior Court (2012) 54 Cal.4th 270, 273.) “‘[T]he roof, walls, doors, and windows

                                              6
constitute parts of a building’s outer boundary, the penetration of which is sufficient for
entry.’ [Citation.]” (Id. at p. 274.)
C. Relevant Law
              This is a DNA-only case—a case where the only evidence inculpating the
defendant to the crime is the defendant’s DNA. Here, Arevalo’s DNA was detected on a
rock found under a nail station. There is no corrobatory evidence placing him at or near
the nail salon during the crime such as surveillance images or eyewitness accounts. In
this DNA-only case, we rely on an analogous fingerprint-only case, Mikes v. Borg (9th
Cir. 1991) 947 F.2d 353 (Mikes) which proves relevant and instructive.
              In Mikes, supra, 947 F.2d at pages 356-357, the Ninth Circuit held “in
fingerprint-only cases in which the prosecution’s theory is based on the premise that the
defendant handled certain objects while committing the crime in question, the record must
contain sufficient evidence from which the trier of fact could reasonably infer that the
fingerprints were in fact impressed at that time and not at some earlier date.” The court
found the mere existence of the defendant’s fingerprints on the murder weapon, a
turnstile post discovered at the crime scene, was insufficient evidence to infer he was the
murderer, absent other circumstantial evidence. (Id. at pp. 357-358.) Prior to the murder,
the turnstile posts were offered for sale (as part of a used turnstile) in a hardware store
where they were accessible to the general public. (Id. at p. 358.) The victim had
purchased the used turnstile and stored it in the basement of his fix-it-shop, which
became the scene of the crime. (Id. at p. 355.)
              The Mikes court explained “there must, at the very least, be sufficient
evidence in the record to permit the factfinder to determine when the fingerprints were
impressed; otherwise, any conviction would be based on pure speculation. [Citation.]”
(Mikes, supra, 947 F.2d at p. 357.) The court explained to eliminate any possibility the
defendant had handled the turnstile post while it was publicly accessible in the hardware
store, the prosecution must present evidence showing it was inaccessible to the defendant

                                              7
during the “[relevant] time prior to the commission of the crime during which the
defendant reasonably could have placed his fingerprints on the object in question and
during which such prints might have remained on that object.” (Ibid.) This
determination rested on “specific facts” regarding “the circumstances surrounding the
custody or location of the object, as well as its function, the accessibility of the object to
the defendant, and the extent to which the object was or could have been handled by
others.” (Id. at pp. 357-358.) The court also considered facts about the fingerprint’s
durability. (Id. at p. 358.)
              The reasoning set forth in Mikes for fingerprint-only cases where the
prosecution exclusively relies on the defendant’s contact with an object is equally
applicable to DNA-only cases. In both situations, the issue becomes whether there is
sufficient evidence from which a rational trier of fact could reasonably conclude contact
with an object could not have occurred other than in connection with the crime.
That conclusion rests on a variety of factors, including: (1) the circumstances
surrounding the custody or location of the object prior to the crime; (2) the object’s
function and connection to the crime; (3) the defendant’s access to the object; (4) the
extent to which other people had or could have contacted the object; and (5) the latent
DNA’s durability and whether environmental factors caused degradation.
              In Mikes, the prosecution relied solely on evidence of the defendant’s
fingerprints. (Mikes, supra, 947 F.2d. at p. 357.) Here, the prosecution relies solely on
evidence of Arevalo’s DNA. In Mikes the object from which the fingerprint evidence
was obtained was clearly related to the crime. There was no question it was the murder
weapon. (Ibid.) Here, the prosecution theorized the object from which Arevalo’s DNA
was obtained was used as a means of entry. The only evidence linking the rock to the
commission of the crime is Correa’s opinion he thought the rock was thrown through the
glass pane to allow a person to reach inside and unlock the door. Correa testified he
swabbed the rock for DNA because he believed it did not belong in the nail salon. No

                                               8
DNA or fingerprints were found on the door handle. Nor was there any other evidence
offered to support Correa’s opinion the rock was the means of entry. It is important to
note Correa did not render this opinion as an expert.
              The only evidence presented about the rock itself was Correa’s testimony
that it was palm-sized and discovered underneath the third nail station from the front on
the east end of the salon, and it contained Arevalo’s DNA. That is all. There is no
circumstantial evidence as to the origin of the rock; whether it came from the strip mall
where the nail salon was located or elsewhere. Correa’s belief as to where the rock did or
did not belong does not provide a factual basis from which anyone could reasonably infer
the rock’s place of origin.
              Unlike in Mikes where the object’s relationship to the crime was clear and
definite, here the relationship between the rock and the crime is far weaker and is best
described as speculative. In Mikes, the court found the mere existence of the defendant’s
fingerprints on the murder weapon, a turnstile post discovered at the crime scene, was
insufficient evidence to infer the defendant was the murderer, absent other circumstantial
evidence. (Mikes, supra, 947 F.2d. at p. 361.) Here, we reach a similar conclusion.
Absent other circumstantial evidence, the mere existence of Arevalo’s DNA on a rock at
the crime scene is insufficient evidence to infer Arevalo committed the burglary.
              The Attorney General asserts Mikes is distinguishable from this case
because in Mikes multiple people’s fingerprints were impressed on the turnstile post,
whereas here only Arevalo’s DNA was discovered on the rock. Apparently the Attorney
General wants us to assume the lack of other DNA on the rock proves Arevalo is the only
individual who came in contact with the rock. We are not persuaded. Zoccoli, the
forensic scientist called by the prosecution, did not testify that the absence of other DNA
established no other person had come in contact with the rock.
              The Attorney General argues this case is similar to People v. Tuggle (2012)
203 Cal.App.4th 1071, 1076 (Tuggle), where the court held defendant’s incriminating

                                             9
fingerprints were sufficient to infer guilt of burglary because the fingerprints were
discovered on a vase in a model home that had been regularly cleaned and had not been
accessible to the general public for over six months. The court concluded there was
sufficient circumstantial evidence to arouse a reasonable inference defendant contacted
the vase contemporaneous to the crime based on the regular cleanings, the vase’s
inaccessibility, and defendant’s post-arrest statements. (Ibid.) Here, the record contains
no specific facts regarding the rock’s prior custody, location, or accessibility to Arevalo
or anyone else. Consequently, the record does not provide sufficient circumstantial
evidence to infer guilt of burglary. Thus, Tuggle is inapplicable.
              Alternatively, the Attorney General asserts Zoccoli’s testimony regarding
DNA degradation is sufficient evidence to support the inference Arevalo transmitted his
DNA onto the rock at the time of the burglary. We disagree.
              Zoccoli testified DNA analysis itself cannot determine a specific
time-frame for when the DNA was transmitted onto an item and she was unable to offer
any opinion on how long Arevalo’s DNA had been on the rock in question. Although
Zoccoli stated environmental factors such as sun exposure, rain, and dirt could degrade a
latent DNA sample, she was unable to offer an opinion on what sorts of environmental
factors may have affected Arevalo’s DNA on the rock, if any. Therefore, Zoccoli’s
testimony regarding DNA degradation can arouse nothing more than speculation and
guesswork pertaining to the rock in this case.
              The need for a connection between the object and the crime rather than just
a connection between the object and the defendant is confirmed in Birt v. Superior Court
(1973) 34 Cal.App.3d 934, 936-937. The Birt court held the mere presence of
defendant’s fingerprint on a cigarette lighter found inside a van used to remove stolen
items from burglarized premises was insufficient to establish probable cause she
committed burglary. The court reasoned, “The cigarette lighter, bearing petitioner’s
fingerprint, was a readily movable object[,] [was not shown to have been a stolen item,]

                                             10
[and t]he van itself was a rental vehicle available to the public.” (Id. at p. 938.) The
court concluded, “At most, the presence of petitioner’s fingerprint on the lighter found on
the front seat showed that, at some unknown time and place, she had been inside the van;
but there was no direct or circumstantial evidence to indicate when and where that had
been. Only by guesswork, speculation, or conjecture can it be inferred that petitioner was
inside the van, or in the area, at the time of the . . . burglary. [Citations.]” (Ibid.)
Likewise, in this case the rock is a readily moveable object accessible to the public.
Without circumstantial evidence showing when and where Arevalo’s contact with the
rock occurred, a fact finder could not rely on the DNA evidence alone to convict Arevalo.
                                               III
               Absent the DNA evidence there is no evidence connecting Arevalo to the
burglary. Therefore, there is no substantial evidence Arevalo committed the crime. We
reverse the judgment.



                                                     O’LEARY, P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.




                                               11
Filed 4/7/14



                          CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FOURTH APPELLATE DISTRICT

                                    DIVISION THREE

THE PEOPLE,

    Plaintiff and Respondent,                        G047523

        v.                                           (Super. Ct. No. 11CF3304)

PEDRO AREVALO,                                       ORDER

    Defendant and Appellant.


               The County of Orange Alternate Defender, The County of Sacramento
Office of the Public Defender, and the San Joaquin County Public Defender, have
separately requested that our opinion filed March 10, 2014, be certified for publication.
It appears that our opinion meets the standards set forth in California Rules of Court, rule
8.1105(c). The request is GRANTED.
               The opinion is ordered published in the Official Reports.



                                                  O’LEARY, P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.



                                             12
