Bracamontes v. Superior Court of San Diego Cnty.

• Citation: 255 Cal.Rptr.3d 53,42 Cal.App.5th 102
• Decision Date: 15 November 2019
• Docket Number: D075671
• Court: California Court of Appeals
• Parties: Manuel BRACAMONTES, Petitioner, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; The People, Real Party in Interest.

42 Cal.App.5th 102

255 Cal.Rptr.3d 53

Manuel BRACAMONTES, Petitioner,

v.The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

The People, Real Party in Interest.

D075671

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

Filed November 15, 2019

Mary K. McComb, State Public Defender, and AJ Kutchins, Deputy State Public Defender, for Petitioner.

No appearance, for Respondent.

Summer Stephan, District Attorney, Mark A. Amador, Linh Lam, and Karl Husoe, Deputy District Attorneys, for Real Party in Interest.

GUERRERO, J.

Petitioner Manuel Bracamontes was sentenced to death in 2005 for the kidnapping and murder of nine-year-old Laura Arroyo. His automatic appeal is currently pending in the California Supreme Court. (People v. Bracamontes (S139702, app. pending).) In anticipation of a future petition for writ of habeas corpus, Bracamontes filed a motion in the San Diego County Superior Court to preserve evidence that may be relevant to such a petition. His motion sought a preservation order covering relevant physical and documentary evidence in the hands of the prosecution, various government entities, and four private individuals or entities that are the subject of this proceeding: Norman Sperber, a forensic dentist and tool mark expert; Rod Englert, a retired police officer and crime scene reconstructionist; and Orchid Cellmark, Inc. (Cellmark) and Serological Research Institute, Inc. (SERI), two forensic laboratories that conduct DNA testing and analysis. Bracamontes relied on People v. Superior Court (Morales ) (2017) 2 Cal.5th 523, 213 Cal.Rptr.3d 581, 388 P.3d 811 ( Morales ), which held that a court has jurisdiction to order preservation of evidence potentially subject to postconviction discovery under Penal Code section 1054.9.¹

The superior court granted Bracamontes's motion in large part, but it declined to issue preservation orders to Sperber, Englert, Cellmark, or SERI. It reasoned that evidence in the possession of these private parties would not be subject to postconviction discovery under section 1054.9 and therefore the court had no jurisdiction to order its preservation.

Bracamontes challenged the superior court's determination by petition for writ of mandate. He argued that Sperber, Englert, Cellmark, and SERI were acting on behalf of the prosecution and evidence in their possession was therefore subject to discovery under section 1054.9.

We summarily denied the petition. The California Supreme Court granted review and transferred the matter back to this court with directions "to vacate [our] order denying the petition for writ of mandate and to issue an order to show cause ... why the relief sought in the petition should not be granted on the ground that private individuals and entities working on criminal cases at the behest and under the direction of law enforcement are subject to the discovery provisions of Penal Code section 1054.9 and the preservation obligations described in [ Morales ]." We issued the order to show cause as directed, and these proceedings followed.

We now conclude that the superior court erred by denying the preservation order directed at Cellmark and SERI. These entities participated in the investigation of Arroyo's murder at the behest and under the direction of law enforcement. Although few law enforcement organizations had the capacity to conduct DNA testing at the time of the murder, it is now seen as a core law enforcement function. Cellmark and SERI are therefore properly viewed as members of the prosecution team for purposes of discovery. Sperber and Englert, by contrast, were retained solely for their testimony at trial as independent expert witnesses. They did not participate in the investigation of the murder. They were not part of the prosecution team as the concept has been defined. We therefore grant the petition in part and deny it in part, as described further below.²

FACTUAL AND PROCEDURAL BACKGROUND

Laura Arroyo disappeared on June 19, 1991, and her body was found the next morning. The Chula Vista Police Department (CVPD) led the investigation into her murder. Rodrigo Viesca, a CVPD evidence technician, took photographs and collected evidence from the crime scene, including a number of hair strands. The next day, Viesca attended Arroyo's autopsy. He took photographs of Arroyo's body, her clothing, and each stage of the autopsy. Viesca collected a number of biological samples during the autopsy, including additional hair strands, oral and vaginal swabs, a neck swab, and fingernail clippings. The medical examiner removed portions of Arroyo's jaw bone and shoulder blade, which showed signs of injury, and Viesca collected those samples as well. Viesca stored the biological evidence in the CVPD crime laboratory.

Soon after Arroyo's murder, CVPD detectives identified Bracamontes as a suspect. In August 1991, police obtained search warrants for Bracamontes's person, residence, and car. Viesca collected hair, blood, and saliva samples from Bracamontes. From his car, investigators obtained a white towel with an apparent blood stain.

The CVPD sent hair strands collected at the crime scene to Cellmark and SERI for DNA testing. Cellmark did not find any DNA material; the results of SERI's testing is unclear from the record. The CVPD provided the bloodstained towel to the San Diego Sheriff's Department for analysis, which in turn sent it to SERI for DNA testing. SERI concluded that the blood on the towel did not come from Arroyo. Arroyo's fingernail clippings were sent to the Sheriff's Department and the Federal Bureau of Investigation (FBI) crime laboratory, but the testing they conducted and any results are also unclear. Despite identifying Bracamontes as a suspect, police made no arrests at the time.³

Twelve years later, in 2003, CVPD cold case investigators identified Arroyo's murder as a candidate for possible reexamination. They met with the former lead detective responsible for the investigation, as well as representatives of the San Diego County District Attorney's Office. They went over the physical evidence and asked the supervisor of the SDPD crime laboratory for advice. The supervisor suggested looking at certain biological evidence again. Viesca and a cold case investigator delivered the swabs from Arroyo's body and her fingernail clippings to the SDPD crime laboratory for testing.

The SDPD crime laboratory detected sperm cells on the oral swabs. Laboratory personnel requested and received the biological samples previously obtained from Bracamontes for comparison. Based on DNA analysis, the laboratory concluded that Bracamontes was very likely the source of sperm on the oral swabs. Additional examination revealed sperm cells underneath both sets of fingernail clippings and on the neck swab. DNA testing showed that Bracamontes was very likely the source of these sperm cells as well.

CVPD officers arrested Bracamontes. Viesca again collected hair, blood, and saliva samples from him.

A deputy district attorney asked the SDPD crime laboratory to send various samples to Cellmark for confirmatory testing. The laboratory sent Cellmark the oral swabs, a vaginal swab, and a reference saliva sample obtained from Bracamontes. Cellmark also found sperm cells on an oral swab. It concluded, to a reasonable degree of scientific certainty, that Bracamontes contributed to the DNA sample on the oral swab.

The San Diego County Superior Court held a multi-week jury trial in August 2005. At trial, as relevant here, CVPD detectives and cold case investigators testified about their investigation into Arroyo's murder. Viesca testified about collecting evidence and sending it to various laboratories for testing. Employees of the SDPD and Sheriff's Department crime laboratories testified about their experience with DNA testing and the results of their testing efforts in this case.

The prosecution presented testimony from a DNA analyst employed by Cellmark. He testified that his main responsibility was to receive and analyze evidence from government agencies throughout the United States. Cellmark charges fees for the DNA testing it performs and any resulting testimony. The analyst understood that the District Attorney's Office was paying his fees to testify in this case. Substantively, he described his process for analyzing the biological samples provided by the SDPD crime laboratory, as well as the conclusions summarized above.

The prosecution also presented testimony from two retained expert witnesses. The first, Norman Sperber, was a general licensed dentist, a forensic dentist (or "odontologist"), and tool mark expert. He received a degree in dentistry in 1954. He began doing forensic dentistry in 1964. Forensic dentistry covers several major areas, including identifying a deceased individual by dental records, determining the age of an individual, and analyzing injuries caused by teeth (e.g., "bite mark" evidence). Sperber had testified in approximately 225 cases, including over 30 non-teeth cases. For this case, Sperber analyzed the jaw bone and shoulder blade collected during Arroyo's autopsy. He also looked at photographs of her injuries, read reports from CVPD detectives and investigators, and visited the scene of the crime in May 2004 with Viesca and a cold case investigator. Sperber was asked to opine whether a gardening tool, specifically a pick mattock, could have inflicted the injuries seen on Arroyo's body. He concluded that the injuries to Arroyo's jaw bone and shoulder blade were very consistent with a pick mattock, as were divots found in the cement underneath Arroyo's body.

The prosecution's second retained expert was Rod Englert, a retired police officer and private crime scene reconstructionist. Englert testified that crime scene reconstruction is an effort to "determine what happened in the case" by reviewing case files, viewing the scene of the crime, and building on the expertise of other investigators and experts. As a police officer, Englert participated in...