People v. Venegas

Decision Date11 May 1998
Docket NumberNo. S044870,S044870
Citation18 Cal.4th 47,954 P.2d 525,74 Cal.Rptr.2d 262
Parties, 954 P.2d 525, 98 Cal. Daily Op. Serv. 3561, 98 Daily Journal D.A.R. 4901 The PEOPLE, Plaintiff and Respondent, v. Sergio VENEGAS, Defendant and Appellant
CourtCalifornia Supreme Court

Fern M. Laethem, State Public Defender, under appointment by the Supreme Court, Valerie Hriciga, Deputy State Public Defender, and Donnalee H. Huffman, Bakersfield, for Defendant and Appellant.

Linda Robertson, San Francisco, Alan Crivaro, Huntington Beach, and John W. Lawrence, Montague, as Amici Curiae on behalf of Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Doris A. Calandra, Frederick R. Millar, Jr., and Jo Graves, Deputy Attorneys General, for Plaintiff and Respondent.

Thomas J. Orloff, District Attorney (Alameda), Rockne P. Harmon, Deputy District Attorney, Kent S. Scheidegger, Charles L. Hobson, Lepper, Schaefer & Harrington, Gary M. Lepper, Sacramento, Keith E. Petersen Inman and Matthew P. Harrington, Walnut Creek, as Amici Curiae on behalf of Plaintiff and Respondent.

I. INTRODUCTION

BAXTER, Justice.

Defendant was convicted of rape by a jury that heard incriminating evidence based on forensic analysis of deoxyribonucleic acid (DNA). The prosecution's evidence indicated (1) that defendant's DNA profile matched the DNA profile of semen recovered from the victim's body and from bedding at the crime scene, and (2) that the probability of a match between those DNA profiles and the profile of a person chosen at random from the general population was 1 in 65,000.

The Court of Appeal reversed the conviction for prejudicial error in the admission of the DNA evidence, basing that error on two grounds: (1) failure to prove general scientific acceptance of the methodology used by the Federal Bureau of Investigation (FBI) in performing its DNA analysis, and (2) lack of compliance by the FBI with procedures recommended in 1992 by the National Research Council (NRC) for determining the statistical probability of a random match. We conclude reversal of the conviction is required on the second, but not the first, of those two grounds, and that, accordingly, the judgment of the Court of Appeal should be affirmed.

The first ground for reversal stated by the Court of Appeal was based on the correct premise that the admissibility of evidence produced by a new scientific technique requires a preliminary showing of the technique's general acceptance in the relevant scientific community. (People v. Kelly (1976) 17 Cal.3d 24, 30, 130 Cal.Rptr. 144, 549 P.2d 1240 (Kelly ); People v. Leahy (1994) 8 Cal.4th 587, 593-604, 34 Cal.Rptr.2d 663, 882 P.2d 321; Frye v. United States (D.C.Cir.1923) 293 F. 1013 (Frye ).) An important corollary of that rule, however, is that if a published appellate decision in a prior case has already upheld the admission of evidence based on such a showing, that decision becomes precedent for subsequent trials in the absence of evidence that the prevailing scientific opinion has materially changed. (Kelly, supra, 17 Cal.3d at p. 32, 130 Cal.Rptr. 144, 549 P.2d 1240.) Prior to the present trial, two California appellate decisions--People v. Axell (1991) 235 Cal.App.3d 836, 1 Cal.Rptr.2d 411 (Axell ), and People v. Barney (1992) 8 Cal.App.4th 798, 10 Cal.Rptr.2d 731 (Barney )--had confirmed the general scientific acceptance of restriction fragment length polymorphism (RFLP) analysis, the technique used by the FBI to generate and compare the DNA profiles in this case. Nonetheless, the Court of Appeal held the prosecution should have been required to prove anew that the relevant scientific community either accepts the reliability of the FBI's particular RFLP methodology as such, or considers it essentially the same as the RFLP methodology utilized by Cellmark Diagnostics (Cellmark) and upheld in Axell.

We disagree with the Court of Appeal's first stated ground for reversal. Apart from procedures for determining the statistical probability of a random match, the methodology used here, as described in testimony of the FBI agent in charge, appears indistinguishable from the RFLP methodology described and upheld in Axell, supra, 235 Cal.App.3d 836, 1 Cal.Rptr.2d 411, and Barney, supra, 8 Cal.App.4th 798, 10 Cal.Rptr.2d 731. In the absence of proof of any material scientific distinction between the two methodologies, therefore, the trial court could properly rely on Axell as establishing general scientific acceptance of the FBI's RFLP methodology used in this case to elicit and compare the DNA profiles of the evidentiary samples.

In contrast, we conclude the Court of Appeal properly upheld the trial court's finding of a scientific consensus that the NRC's "modified ceiling" approach or method--used to calculate the statistical probabilities of a match between the evidentiary samples and the DNA of an unrelated person chosen at random from the general population--is forensically reliable, in that from the scientifically based range of probabilities it selects the figures that most favor the accused, and therefore cannot furnish a basis on which to invalidate the admissibility of such evidence on motion of the accused. The Court of Appeal also held, however, that the FBI had failed in one material respect to follow correct scientific procedures in implementing the NRC's methodology. As will be explained, we agree that the FBI's implementation was defective, but in a somewhat different respect than that with which the Court of Appeal took issue. We further agree with the Court of Appeal's conclusion that the FBI's failure to use correct procedures in this case required exclusion of the DNA evidence, and that the erroneous admission of such evidence prejudiced defendant, requiring that the trial court's judgment be reversed.

II. FACTS AND PROCEDURAL BACKGROUND

Defendant was convicted and sentenced to 65 years of imprisonment on multiple counts of rape and related offenses, committed during the early afternoon of November 2, 1989, at the Red Lion Inn in Bakersfield. 1 The victim, a hotel guest, had worked that morning as a stenographic reporter for the initial session of a conference being held in one of the hotel's meeting rooms. When the session ended, she packed up her briefcase and stenography machine and, at approximately 11:45 a.m., took the five-minute walk along corridors, through the lobby, across the pool area, and through double glass doors down a long hallway to her room.

The double doors were opened for her by a Hispanic man, almost six feet tall, wearing a light T-shirt and light denim pants. Reaching her room, she set the stenography machine down in the hallway, unlocked the door, and put her briefcase inside. Just as she turned back to bring in the machine, the man entered the room and pushed her to the floor. He said he had a knife and ordered her to keep silent and to not look at him. He remained in the room for about two hours, committing the charged sexual offenses, cutting her with the knife, hitting her with his hand, ransacking her belongings, and binding her tightly with bedding and electrical cord. A hotel housekeeper discovered her plight about 2 p.m. The victim was unable to see the man's face during her ordeal. Thereafter, at a live lineup, she was unable to positively identify defendant or any other particular individual as her assailant.

Earlier that morning, at approximately 10:45 a.m., defendant had appeared at the hotel's human resources department, located upstairs from the meeting rooms, to apply for employment. The administrative assistant gave him a written application and invited him to sit and fill it out at a table outside her office. She said she would see him again after she completed a scheduled orientation tour of the premises for a group of new employees. When she left her office about 11:00 a.m., he was seated at the table, but during the tour she was surprised to see him in a different part of the hotel, descending an outdoor stairway located near the hallway leading to the victim's room. When the tour was over, at approximately 11:30 a.m., he was again seated outside her office. He handed her the filled-in application form (which is in evidence); she interviewed him for 15 or 20 minutes; and he departed. She testified he was dressed in a white T-shirt, gray cotton pants, and white tennis shoes, and that he also wore a nylon jacket and blue baseball cap that he removed for the interview.

The victim was taken from the crime scene to a hospital, where medical personnel examined her, observed her bruises and lacerations, took vaginal swabs and samples of her hair, blood and saliva, and removed a foreign pubic hair from her vagina. She also reported she had engaged in consensual intercourse with a friend, M.M., two days earlier.

Defendant was brought to a police interview room on November 15, where he was asked for samples of his hair, saliva, and blood. He refused at first, but gave the hair and saliva samples the next day. A sample of his blood was taken on February 1, 1990, pursuant to a search warrant. At the crime scene police could find no fingerprints other than those of the victim. They collected some bedding and other evidentiary items for stain (blood, semen, saliva) analysis. They also obtained a blood sample from the victim's friend, M.M.

A county criminalist testified the victim could not have been the source of the pubic hair found in her vagina; that the hair was similar to, but not exactly the same as, defendant's hair samples; and that the dissimilarities were insufficient to exclude it as originating from defendant. Another criminalist tested the vaginal swabs and some semen stains found on the bedspread for "genetic markers," 2 seeking to compare them with the markers found in the saliva and blood samples from defendant and the victim. Although no markers...

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