People v. Superior Court of San Diego Cnty.

• Decision Date: 17 October 2018
• Docket Number: D073943
• Citation: 239 Cal.Rptr.3d 71,28 Cal.App.5th 223
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Petitioner, v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; Florencio Jose Dominguez, Real Party in Interest.

28 Cal.App.5th 223

239 Cal.Rptr.3d 71

The PEOPLE, Petitioner,

v. The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;Florencio Jose Dominguez, Real Party in Interest.

D073943

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

Filed October 17, 2018

Summer Stephan, District Attorney, and Mark A. Amador, Linh Lam and Christine L. Bannon, Deputy District Attorneys, for Petitioner.

No appearance for Respondent.

Matthew J. Speredelozzi, San Diego, for Real Party in Interest.

G&P Schick, Malcolm D. Schick, and Douglas S. Rafner for the Institute of Environmental Science and Research Limited as Amicus Curiae on behalf of Petitioner.

Bardis Vakili, Vera Eidelman, Andrea Woods, Brett Max Kaufman, Brandon Buskey, and Rachel Goodman for the American Civil Liberties Union and the American Civil Liberties Union of San Diego & Imperial Counties as Amici Curiae on behalf of Real Party in Interest.

Wolf, Greenfield & Sacks, Gerald B. Hrycyszyn, Michael A. Albert, and Anant K. Saraswat ; Dana M. Delger, Linda Starr, Justin Brooks, Alexander Simpson, and Paula M. Mitchell for the Innocence Project, Inc., the California Innocence Project, the Northern California Innocence Project at Santa Clara University School of Law, and Loyola Law School's Project for the Innocent as Amici Curiae on behalf of Real Party in Interest.

Justine M. Luongo, Richard Torres, Terri Rosenblatt, and Cynthia Conti-Cook for the Legal Aid Society of New York, New York as Amicus Curiae on behalf of Real Party in Interest.

DATO, J.

In this writ proceeding, the People seek relief from a discovery order requiring them to produce certain materials related to DNA testing in a criminal action. With respect to the four categories of evidence at issue, three separate grounds for relief are pursued. We find each has merit. Accordingly, we grant the relief requested by the People in full.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Florencio Jose Dominguez stands accused of conspiracy to commit murder.¹ (See Pen. Code, §§ 182, subd. (a), 187.)² For the purposes of this writ proceeding, one piece of evidence expected to be introduced at his upcoming trial is central: results from DNA testing conducted on a pair of blood-soaked gloves found near the scene of the crime.

No one disputes that DNA testing established the blood on the gloves' exterior to be that of victim. DNA on swabs from the gloves' interior, however, could not be tied to a single source. Rather, those swabs yielded a low template DNA mixture with multiple contributors. (See People v. Lazarus (2015) 238 Cal.App.4th 734, 784, fn. 51, 190 Cal.Rptr.3d 195 [" ‘Low template’ DNA testing ... refers to testing performed on ‘amounts of DNA that are at or below the "stochastic threshold." ’ "].) Given the number of contributors, the mixture was characterized as "complex." (See Phillips v. State (2015) 226 Md.App. 1, 126 A.3d 739, 741, fn. 3 ["A ‘complex’ DNA sample refers to a DNA sample that includes genetic material from three or more individuals"].)

The San Diego Police Department Crime Lab (the lab) tested the swabs using the STRmix program, which it purchased in 2015 from the U.S. distributor (NicheVision) of a research institute owned by the government of New Zealand (the Institute of Environmental Science and Research Limited, aka ESR). STRmix is a "probabilistic genotyping

" program—i.e., one that " ‘comprise[s] ... software, or software and hardware, with analytical and statistical functions that entail complex formulae and algorithms.’ " (Chin et al., Forensic DNA Evidence: Science and the Law (The Rutter Group 2018) ¶ 11:7.) It produces a likelihood ratio, which is generally "expressed as follows: a match between the suspect and the evidence is (x number) of times more probable than a coincidental match." (See People v. Bullard-Daniel (N.Y.Sup.Ct. 2016) 54 Misc.3d 177, 42 N.Y.S.3d 714, 717, fn. 4.) Probabilistic genotyping has been described as " ‘[p]articularly useful for low-level DNA samples ... and complex mixtures’ " since it " ‘can reduce subjectivity in the analysis of DNA typing results.’ " (Chin et al., Forensic DNA Evidence: Science and the Law, supra , ¶ 11:7.)

In February 2018, defense counsel informally requested discovery of materials related to the STRmix program from the People. (See § 1054.1.) Four categories of that request are pertinent to this writ proceeding: (1) the STRmix user manual and any related updates; (2) the STRmix software program and any related updates; (3) the STRmix program's source code; and (4) ESR's internal validation studies and related documents.

In response to the informal discovery request, the prosecutor declared that the lab could not provide (1) the user manual because "it is copyrighted by ESR"; (2) the software because it would "not work without a license," which only ESR could furnish; (3) the source code because the lab "[d]oes not have knowledge or capacity" to do so; and (4) ESR's general internal validation records, presumably because the lab did not have them. The prosecutor further declared that ESR indicated it would produce all four pursuant to its "Defense Access Policy," which required execution of a nondisclosure agreement (NDA).

The NDA, in turn, imposed certain confidentiality restrictions on "protected information" related to and including the STRmix program. Among those restrictions, the agreement required that the recipient of the information not "disclose or release Protected Information to any third party except with the specific prior written consent of ESR or except as expressly otherwise permitted in this Agreement." A separate section entitled "Legal Proceedings," specified:

"If Recipients or any of Recipients' Affiliates become legally compelled (by oral questions, interrogatories, requests for information or documents, subpoena, civil or criminal investigative demand, or similar process) to make any disclosure that is prohibited or otherwise constrained by this Agreement, Recipient or such Affiliate will provide ESR with prompt written notice of such legal proceeding(s) so that it may seek an appropriate protective order or other appropriate relief including, but not limited to, an order to have any testimony or records sealed, or waive compliance with the provisions of this Agreement. In the absence of a protective order or Recipients receiving such a waiver from ESR, Recipients or Recipients' Affiliates are permitted (with ESR's cooperation but at Recipients' expense) to disclose that portion (and only that portion) of the Protected Information that Recipients or Recipients' Affiliates are legally compelled to disclose, provided however, that Recipients and Recipients' Affiliates must use reasonable efforts to obtain reliable assurance that confidential treatment will be accorded by any person to whom any Protected Information is so disclosed."

Apparently finding the possibility of obtaining the information under the NDA unsuitable, Dominguez moved to compel the People's production of the materials related to the STRmix program. He asserted that ESR was part of the prosecution team and so the onus was on the People to obtain documents from it. He further argued that his right to a fair trial and effective cross-examination overrode any intellectual property concerns. Specifically as to the possibility of obtaining the material under the NDA, defense counsel deemed it untenable since in his view, that agreement might interfere with his use of the materials to defend his client.

In their responsive briefing, the People disputed the relevance of the requested items and ESR's purported status as part of the prosecution team. The People also represented that ESR claimed trade secret privilege over the targeted materials.

Separately, Dominguez sought the materials in question directly from ESR by way of a subpoena duces tecum. Pursuant to the Uniform Act to Secure the Attendance of Witnesses (§ 1334 et seq.), it was served on NicheVision (ESR's U.S. distributor) and ESR's U.S.-based counsel.

At most a day after the subpoena was served, the court heard Dominguez's motion to compel; no representative from ESR was present. At the hearing, the DNA technical manager of the lab's forensic biology unit (Shawn Montpetit) testified. He explained that the lab's STRmix purchase included access to periodic software upgrades and technical assistance, though the lab used the latter "pretty rare[ly]." The lab also separately paid NicheVision to have 9 of its 15 analysts attend a weeklong training conducted by ESR in January 2015; since then, all the lab's analyst training related to the program was conducted in-house.

Montpetit additionally explained that the lab independently validated the STRmix program before using it on any casework. He thought "that [the lab's] validation would have keyed [it] in to any sort of major problem with ... the underlying source code," if there was one. Documentation of the lab's validation studies was publicly available on the San Diego Police Department's website. The lab did not rely on ESR's internal validation studies, nor did it possess them. Similarly, Montpetit testified that the lab did not have access to the source code underlying the program. And while the lab had the user manual for the program, Montpetit testified that ESR's copyright over the material, as well as the lab's contract with the company, prevented its distribution.

Regarding the analysis conducted in this particular case, Montpetit testified that ESR had not been involved at all. While in rare cases the lab might contact ESR for further explanation when something appeared awry with results rendered, no such issue arose here.

Following Montpetit's testimony, the court heard extensive arguments from both defense counsel and the prosecution on the discovery motion. Defense counsel primarily argued that he had a right to look inside the proverbial "black box" that is STRmix. He reasserted that the NDA was a nonstarter as it could potentially prevent the...