Supreme Court of California Justia
Citation 43 Cal. 4th 1242, 185 P.3d 49, 78 Cal. Rptr. 3d 69

People v. Nelson

Filed 6/16/08

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S147051
v.
) Ct.App.
3
C047366
DENNIS LOUIS NELSON,
Sacramento
County
Defendant and Appellant.
Super. Ct. No. 02F06021

In 2002, investigators compared evidence from a 1976 murder scene with
defendant’s deoxyribonucleic acid (DNA) profile and identified him as a possible
donor of that evidence. He was then tried for and convicted of that murder. The
prosecution presented evidence that the odds that a random person unrelated to
defendant from the population group that produced odds most favorable to him
could have fit the profile of some of the crime scene evidence are one in 930
sextillion (93 followed by 22 zeros). Because the world’s total population is only
about seven billion (seven followed by nine zeros), this evidence is tantamount to
saying that defendant left the evidence at the crime scene. We granted review to
decide issues arising from prosecutions following such DNA “cold hits” many
years after the crime.
We conclude that the justification for the delay in charging defendant with
this 1976 crime — he was not charged until further investigation, specifically the
DNA testing in 2002, provided strong new evidence of his guilt — outweighed the
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prejudice defendant suffered from the delay. Accordingly, the delay did not
violate defendant’s constitutional rights to a fair trial and due process. We also
conclude that the jury properly heard evidence that it was virtually impossible that
anyone other than defendant could have left the evidence found at the crime scene.
Accordingly, we affirm the judgment of the Court of Appeal, which
reached similar conclusions.
I. FACTS AND PROCEDURAL HISTORY
Because neither party petitioned the Court of Appeal for a rehearing, we
take our facts largely from that court’s opinion. (Richmond v. Shasta Community
Services Dist. (2004) 32 Cal.4th 409, 415; see Cal. Rules of Court, rule
8.500(c)(2).)
In the late afternoon of February 23, 1976, Ollie George, a 19-year-old
college student, drove her brother’s car to a shopping center in Sacramento to buy
some nylons. Around 5:30 p.m., she told her mother by telephone that the car
would not start. Around that time, she was seen at a nearby McDonald’s
restaurant. Later the car was found unattended at the shopping center, with the
door unlocked and the keys in the ignition. The car contained grocery items,
nylons, Ollie’s purse, and a partially eaten McDonald’s hamburger. Ollie was
missing. Her family notified the police that she was missing, and her
disappearance was reported in the newspaper and on television. Two people said
they had observed Ollie inside a car at the shopping center around the time she
disappeared. The hood was open, and a man described as African-American
appeared to be working on the engine. One witness said the man was wearing a
“watch cap.”
Two days later, Ollie’s body was found in an unincorporated area of
Sacramento County. She had been raped and drowned in mud.
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Within a couple of weeks, one of the witnesses saw what he believed to be
the same car in which he had seen Ollie around the time she disappeared. He
reported the license number to the police. The car was defendant’s faded blue
Oldsmobile F85. In early March 1976, sheriff’s detectives observed defendant
and his car in an apartment parking lot. He was wearing a watch cap. He agreed
to go to the sheriff’s department for an interview. There, he gave a rather
confused account of his whereabouts at the time Ollie disappeared. Defendant’s
mother-in-law said that defendant was at her house sometime between 4:00 and
6:00 p.m. on the day Ollie disappeared, but she also said that defendant never
stayed long at her house.
During the investigation, detectives received hundreds of tips, including
reports that Ollie, or at least a woman who, like Ollie, was African-American, was
seen with a Caucasian male or males. Detectives interviewed over 180 potential
witnesses and followed other leads. However, they were unable to develop
sufficient evidence to focus the investigation on a specific person. Eventually, the
matter became a cold case, that is, unsolved but inactive.
In later years, for unrelated events, defendant was convicted of criminal
offenses, including rape and forcible oral copulation, and was sentenced to a
lengthy prison term. A biological sample was obtained from him for DNA
analysis and entry into the state convicted offender databank.
In October 2000, the state allocated funds to enable local law enforcement
agencies to utilize DNA to solve sexual assault cases that lacked suspects.
Sacramento County began hiring and training analysts, a process that takes about a
year. At that time, the county had about 1,600 unsolved sexual assault cases. In
July 2001, a review of Ollie George’s death determined that the case had
biological evidence warranting analysis. The case was put in line for DNA
analysis. The evidence included a vaginal swab, semen stains on Ollie’s sweater,
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and Ollie’s hair samples obtained during the autopsy. An analyst used part of a
semen stain from the sweater to develop a DNA profile. The state Department of
Justice obtained that profile for comparison, by computer, with the state’s
convicted offender databank. At the time, the databank contained about 184,000
individual profiles. The search resulted in a match with one of the persons in the
databank. Defendant was that person, and he was identified as a potential source
of the semen stain.
In 2002, with a warrant, detectives obtained oral swabs from defendant,
which were analyzed with Ollie’s vaginal swab, the semen stains on her sweater,
and her hair samples. Defendant’s DNA matched the DNA of each of the
evidence samples. As a result, defendant was charged with Ollie’s first degree
murder. Before trial, defendant moved unsuccessfully to have the matter
dismissed due to the delay in charging him with the murder. (This point will be
discussed further in pt. II. A., post.) At trial, over objection, the prosecution
presented evidence that the DNA profile on the vaginal swab would occur at
random among unrelated individuals in about one in 950 sextillion African-
Americans, one in 130 septillion Caucasians, and one in 930 sextillion Hispanics.
There are 21 zeros in a sextillion and 24 zeros in a septillion. (This evidence will
be discussed further in pt. II. B., post.)
In view of the DNA evidence, the defense did not deny that defendant had
sexual intercourse with Ollie. Rather, the defense claimed that Ollie and
defendant had consensual intercourse on the weekend before she disappeared, and
that someone else abducted, raped, and murdered her.
The jury convicted defendant of first degree murder, and the trial court
sentenced him accordingly. The Court of Appeal affirmed the judgment. We
granted defendant’s petition for review limited to the following questions: (1)
Did the delay in charging defendant violate his state and federal constitutional
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rights? (2) Does the methodology for assessing the statistical significance of a
“cold hit” from a DNA database require proof of general scientific acceptance?
(3) How should the statistical significance of a “cold hit” from a DNA database
be calculated?
II. DISCUSSION
A. Delay in Bringing Charges
Defendant was charged with Ollie’s 1976 murder in 2002. He contends his
state and federal constitutional rights to a fair trial and due process were violated
because the delay was unjustified and prejudiced his defense. The prosecution
contends the delay was justified because it did not have enough evidence to bring
charges until the 2002 comparison of the crime scene evidence with defendant’s
DNA resulted in a match. It also contends, and defendant does not deny, that it
prosecuted defendant reasonably promptly after it obtained the DNA evidence.
Defendant’s state and federal constitutional speedy trial rights (U.S. Const.,
6th Amend.; Cal. Const., art. I, § 15, cl. 1) are not implicated in this case. Neither
applies until at least the defendant has been arrested or a charging document has
been filed. (See People v. Martinez (2000) 22 Cal.4th 750, 754-755.) Defendant
was not charged with or arrested for this murder until 2002, so his speedy trial
rights did not attach until that time. He does not complain of delay after that time.
Defendant complains only of delay between the murder and the time the
state first charged him with the crime (hereafter sometimes referred to as
precharging delay). Although precharging delay does not implicate speedy trial
rights, a defendant is not without recourse if the delay is unjustified and
prejudicial. “[T]he right of due process protects a criminal defendant’s interest in
fair adjudication by preventing unjustified delays that weaken the defense through
the dimming of memories, the death or disappearance of witnesses, and the loss or
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destruction of material physical evidence.” (People v. Martinez, supra, 22 Cal.4th
at p. 767.) Accordingly, “[d]elay in prosecution that occurs before the accused is
arrested or the complaint is filed may constitute a denial of the right to a fair trial
and to due process of law under the state and federal Constitutions. A defendant
seeking to dismiss a charge on this ground must demonstrate prejudice arising
from the delay. The prosecution may offer justification for the delay, and the
court considering a motion to dismiss balances the harm to the defendant against
the justification for the delay.” (People v. Catlin (2001) 26 Cal.4th 81, 107
(Catlin).)
Defendant argues that when the delay is as long as it was here, prejudice
should simply be presumed, with no need to show specific prejudice. That has
never been the law, and we decline to adopt such a rule here. As we have
explained, “[t]he statute of limitations is usually considered the primary guarantee
against bringing overly stale criminal charges,” and there “is no statute of
limitations on murder.” (People v. Archerd (1970) 3 Cal.3d 615, 639 (Archerd).)
Presuming prejudice would be inconsistent with the Legislature’s declining to
impose a statute of limitations for murder, among the most serious of crimes. To
avoid murder charges due to delay, the defendant must affirmatively show
prejudice.
In this case, defendant did demonstrate some prejudice due to the delay. In
a meticulous opinion, the Court of Appeal considered every basis on which
defendant claimed prejudice. It discussed the significance of witnesses defendant
claimed were unavailable due to the delay and concluded that, although some of
the missing witnesses would have provided relevant testimony, the overall
prejudice was slight, especially considering the evidence defendant was able to
produce at trial. It discussed defendant’s other claims of prejudice, including loss
of memory, missing photographs, lost or destroyed physical evidence (swabs from
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the autopsy, degraded DNA samples, fingerprints, hair, and tire tracks), loss of
alibi evidence, and unavailable facts for pretrial motions. In each case, the Court
of Appeal concluded that the claim of prejudice was either overstated, speculative,
or meritless. We have reviewed the Court of Appeal’s opinion in this respect and
find it thorough and reliable. We agree with its conclusion that “defendant
demonstrated some prejudice sufficient to require the prosecution to justify the
preaccusation delay, but the prejudice was minimal.”
The prejudice to defendant must be balanced against the justification for the
delay. The state and federal constitutional standards regarding what justifies delay
differ. Regarding the federal constitutional standard, we have stated that “[a]
claim based upon the federal Constitution also requires a showing that the delay
was undertaken to gain a tactical advantage over the defendant.” (Catlin, supra,
26 Cal.4th at p. 107; see also People v. Horning (2004) 34 Cal.4th 871, 895.)
Defendant argues that the showing that the United States Constitution requires is
not quite this onerous. As we explain, the exact standard under that Constitution is
not entirely settled. It is clear, however, that the law under the California
Constitution is at least as favorable for the defendant in this regard as the law
under the United States Constitution. Accordingly, we can and will apply
California law.
In U.S. v. Marion (1971) 404 U.S. 307 (Marion), the high court held that
Sixth Amendment speedy trial rights do not apply before arrest. “Passage of time,
whether before or after arrest, may impair memories, cause evidence to be lost,
deprive the defendant of witnesses, and otherwise interfere with his ability to
defend himself. But this possibility of prejudice at trial is not itself sufficient
reason to wrench the Sixth Amendment from its proper context. Possible
prejudice is inherent in any delay, however short; it may also weaken the
Government’s case.” (Id. at pp. 321-322, fn. omitted.) Because of this, the court
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explained, the applicable statute of limitations is the primary guarantee against
delay. (Id. at p. 322.) However, the court also explained that “the statute of
limitations does not fully define the appellees’ rights with respect to the events
occurring prior to indictment. Thus, the Government concedes that the Due
Process Clause of the Fifth Amendment would require dismissal of the indictment
if it were shown at trial that the pre-indictment delay in this case caused
substantial prejudice to appellees’ rights to a fair trial and that the delay was an
intentional device to gain tactical advantage over the accused. [Citations.]
However, we need not, and could not now, determine when and in what
circumstances actual prejudice resulting from preaccusation delays requires the
dismissal of the prosecution. Actual prejudice to the defense of a criminal case
may result from the shortest and most necessary delay; and no one suggests that
every delay-caused detriment to a defendant’s case should abort a criminal
prosecution. To accommodate the sound administration of justice to the rights of
the defendant to a fair trial will necessarily involve a delicate judgment based on
the circumstances of each case. It would be unwise at this juncture to attempt to
forecast our decision in such cases.” (Id. at pp. 324-325, fns. omitted.) The court
went on to hold that because the defendants had not shown either prejudice or an
intentional delay to gain a tactical advantage, they could not show a due process
violation. (Id. at pp. 325-326.)
Later, in U.S. v. Lovasco (1977) 431 U.S. 783 (Lovasco), the high court
reiterated that “the Due Process Clause has a limited role to play in protecting
against oppressive delay.” (Id. at p. 789.) It explained that “Marion[, supra, 404
U.S. 307,] makes clear that proof of prejudice is generally a necessary but not
sufficient element of a due process claim, and that the due process inquiry must
consider the reasons for the delay as well as the prejudice to the accused.” (Id. at
p. 790.) Regarding justification for the delay, the court stressed that “the Due
8
Process Clause does not permit courts to abort criminal prosecutions simply
because they disagree with a prosecutor’s judgment as to when to seek an
indictment. . . . [¶] It requires no extended argument to establish that prosecutors
do not deviate from ‘fundamental conceptions of justice’ when they defer seeking
indictments until they have probable cause to believe an accused is guilty . . . . It
should be equally obvious that prosecutors are under no duty to file charges as
soon as probable cause exists but before they are satisfied they will be able to
establish the suspect’s guilt beyond a reasonable doubt. . . . [N]o one’s interests
would be well served by compelling prosecutors to initiate prosecutions as soon as
they are legally entitled to do so. [¶] It might be argued that once the Government
has assembled sufficient evidence to prove guilt beyond a reasonable doubt, it
should be constitutionally required to file charges promptly, even if its
investigation of the entire criminal transaction is not complete. Adopting such a
rule, however, would have many of the same consequences as adopting a rule
requiring immediate prosecution upon probable cause.” (Id. at pp. 790-792, fns.
omitted.)
The Lovasco court went on to explain the many legitimate reasons the
government might delay bringing charges even after it has sufficient evidence to
convict. (Lovasco, supra, 431 U.S. at pp. 792-795.) Because of these reasons, in
its view, “investigative delay is fundamentally unlike delay undertaken by the
Government solely ‘to gain tactical advantage over the accused,’ United States v.
Marion, 404 U.S., at 324, precisely because investigative delay is not so one-
sided.” (Id. at p. 795.) In a footnote at this point, the court added, “In Marion we
noted with approval that the Government conceded that a ‘tactical’ delay would
violate the Due Process Clause. The Government renews that concession here . . .
and expands it somewhat by stating: ‘A due process violation might also be made
out upon a showing of prosecutorial delay incurred in reckless disregard of
9
circumstances, known to the prosecution, suggesting that there existed an
appreciable risk that delay would impair the ability to mount an effective
defense,’ . . . .” (Id. at p. 795, fn. 17.) For these reasons, the court “h[e]ld that to
prosecute a defendant following investigative delay does not deprive him of due
process, even if his defense might have been somewhat prejudiced by the lapse of
time.” (Id. at p. 796.) The court concluded: “In Marion we conceded that we
could not determine in the abstract the circumstances in which preaccusation delay
would require dismissing prosecutions. 404 U.S., at 324. More than five years
later, that statement remains true. Indeed, in the intervening years so few
defendants have established that they were prejudiced by delay that neither this
Court nor any lower court has had a sustained opportunity to consider the
constitutional significance of various reasons for delay. We therefore leave to the
lower courts, in the first instance, the task of applying the settled principles of due
process that we have discussed to the particular circumstances of individual cases.
We simply hold that in this case the lower courts erred in dismissing the
indictment.” (Id. at pp. 796-797, fn. omitted.)
Thus, Lovasco, supra, 431 U.S. 783, and Marion, supra, 404 U.S. 307,
indicated that delay undertaken to gain a tactical advantage over the accused, or
delay incurred in reckless disregard of circumstances known to the prosecution
suggesting that delay might prejudice the defense, would violate due process if the
defendant demonstrates prejudice. Additionally, they appeared to leave open the
possibility that delay might be unjustified in other circumstances as well. Later,
however, the high court said that Lovasco had “articulated” that due process
claims based on delay in instituting criminal proceedings “can prevail only upon a
showing that the Government delayed seeking an indictment in a deliberate
attempt to gain an unfair tactical advantage over the defendant or in reckless
disregard of its probable prejudicial impact upon the defendant’s ability to defend
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against the charges.” (U.S. v. $8,850 (1983) 461 U.S. 555, 563, italics added.)
Later still, the court said that “the Fifth Amendment requires the dismissal of an
indictment, even if it is brought within the statute of limitations, if the defendant
can prove that the Government’s delay in bringing the indictment was a deliberate
device to gain an advantage over him and that it caused him actual prejudice in
presenting his defense.” (U.S. v. Gouveia (1984) 467 U.S. 180, 192.) This last
statement is consistent with what we said in Catlin, supra, 26 Cal.4th at page 107,
although some of the high court’s earlier cases suggest the test might be somewhat
less onerous.
The law regarding justification for the delay developed differently under
state law. An early case that is factually similar to this one is Archerd, supra, 3
Cal.3d 615. In Archerd, the defendant was charged with three counts of murder
by insulin poisoning 11 years after the first victim died. We rejected the
defendant’s argument that the delay violated his due process rights. We said that
for delay to violate due process, there must have been no legitimate reason for the
delay, and it must have prejudiced the defendant. (Id. at p. 640.)
Regarding delay, we said, “If the government deliberately utilizes delay to
strengthen its position by weakening that of the defense or otherwise impairs a
defendant’s right to a fair trial, an inordinate pre-indictment delay may be shown
to be prejudicial. A prosecutor is entitled to reasonable time in which to
investigate an offense for the purpose of determining whether a prosecution is
warranted and also in preparation of a case for submission to the grand jury.
[Citations.] The delay must be purposeful, oppressive, and even ‘smack of
deliberate obstruction on the part of the government,’ before relief will be granted.
[Citations.]” (Archerd, supra, 3 Cal.3d at p. 640.) We found that the delay in that
case was justified. At the time of the first charged murder in 1956, “the police
suspected defendant of murder but they were unable to prove it, because at that
11
time all of the medical authority was of the opinion that the cause of death could
not be established as due to a criminal agency.” (Id. at p. 641.) Only developing
medical and forensic techniques and additional suspicious deaths permitted the
state to collect sufficient evidence to warrant charging the defendant 11 years
later. (Id. at pp. 641-643; see Catlin, supra, 26 Cal.4th at p. 109.) In denying
relief to the defendant, we noted that “[t]he delay was neither unreasonable,
arbitrary, oppressive or vexatious and was not deliberately caused to harass
defendant.” (Archerd, supra, at p. 643.)
A subsequent Court of Appeal decision expanded the circumstances in
which delay could be found unjustified. (Penney v. Superior Court (1972) 28
Cal.App.3d 941 (Penney).) In Penney, murder charges were brought several years
after the victim’s death, and the defendant argued that the delay violated his due
process rights. The appellate court concluded that “[t]he requirement of a
legitimate reason for the prosecutorial delay cannot be met simply by showing an
absence of deliberate, purposeful or oppressive police conduct. A ‘legitimate
reason’ logically requires something more than the absence of governmental bad
faith. Negligence on the part of police officers in gathering evidence or in putting
the case together for presentation to the district attorney, or incompetency on the
part of the district attorney in evaluating a case for possible prosecution can hardly
be considered a valid police purpose justifying a lengthy delay which results in the
deprivation of a right to a fair trial.” (Penney, supra, at p. 953.) The court
remanded the matter to the trial court to conduct further hearings in light of the
test it stated. (Id. at pp. 954-955.)
In People v. Hannon (1977) 19 Cal.3d 588, 610-611, footnote 12, we noted
that “the Penney interpretation of the due process issue conflicts with the
requirement of intentional delay set forth in Archerd and Marion,” but we
expressed no opinion on the question. We next took up the question in Scherling
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v. Superior Court (1978) 22 Cal.3d 493 (Scherling). In Scherling, we found that
because the defendant had not shown prejudice, we did not have to determine
whether the delay was justified. (Id. at p. 506.) But we also stated that we did
“not intend to imply that only a deliberate delay by the prosecution for the purpose
of prejudicing the defense may justify a conclusion that a defendant has been
deprived of due process. The ultimate inquiry in determining a claim based upon
due process is whether the defendant will be denied a fair trial. If such deprivation
results from unjustified delay by the prosecution coupled with prejudice, it makes
no difference whether the delay was deliberately designed to disadvantage the
defendant, or whether it was caused by negligence of law enforcement agencies or
the prosecution. In both situations, the defendant will be denied his right to a fair
trial as a result of governmental conduct. (See Penney v. Superior Court [, supra,]
28 Cal.App.3d 941, 950.) Thus, although delay may have been caused only by the
negligence of the government, the prejudice suffered by a defendant may be
sufficient when balanced against the reasons for the delay to constitute a denial of
due process.” (Id. at p. 507.)
In the years since Scherling, supra, 22 Cal.3d 493, was decided, this court
has not again spoken on the point, but a number of Court of Appeal decisions have
concluded that negligent, as well as purposeful, delay may be unjustified. (People
v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911; People v. Hartman (1985) 170
Cal.App.3d 572, 581; People v. Pellegrino (1978) 86 Cal.App.3d 776, 780.)
Accordingly, under California law, negligent, as well as purposeful, delay
in bringing charges may, when accompanied by a showing of prejudice, violate
due process. This does not mean, however, that whether the delay was purposeful
or negligent is irrelevant. In Scherling, supra, 22 Cal.3d at pages 506-507, we
said that because the “defendant was not prejudiced by the delay, we need not
determine whether the delay was justified, particularly since there was no evidence
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that the delay in prosecution was for the purpose of weakening the defense.” In
Catlin, we found the justification for the delay outweighed the defendant’s weak
showing of prejudice, but we also observed “that there was no evidence that the
delay was undertaken in order to gain an advantage over defendant . . . .” (Catlin,
supra, 26 Cal.4th at pp. 109-110.) As these observations imply, whether the delay
was negligent or purposeful is relevant to the balancing process. Purposeful delay
to gain an advantage is totally unjustified, and a relatively weak showing of
prejudice would suffice to tip the scales towards finding a due process violation.
If the delay was merely negligent, a greater showing of prejudice would be
required to establish a due process violation.
In this case, the justification for the delay was strong. The delay was
investigative delay, nothing else. The police may have had some basis to suspect
defendant of the crime shortly after it was committed in 1976. But law
enforcement agencies did not fully solve this case until 2002, when a comparison
of defendant’s DNA with the crime scene evidence resulted in a match, i.e., until
the cold hit showed that the evidence came from defendant. Only at that point did
the prosecution believe it had sufficient evidence to charge defendant. A court
should not second-guess the prosecution’s decision regarding whether sufficient
evidence exists to warrant bringing charges. “The due process clause does not
permit courts to abort criminal prosecutions simply because they disagree with a
prosecutor’s judgment as to when to seek an indictment. . . . Prosecutors are under
no duty to file charges as soon as probable cause exists but before they are
satisfied they will be able to establish the suspect’s guilt beyond a reasonable
doubt. . . . Investigative delay is fundamentally unlike delay undertaken by the
government solely to gain tactical advantage over an accused because
investigative delay is not so one-sided. A prosecutor abides by elementary
standards of fair play and decency by refusing to seek indictments until he or she
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is completely satisfied the defendant should be prosecuted and the office of the
prosecutor will be able to promptly establish guilt beyond a reasonable doubt.”
(People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at pp. 914-915, citing Lovasco,
supra, 431 U.S. at pp. 790-796; see also Catlin, supra, 26 Cal.4th at p. 109
[quoting much of this same language].) Indeed, as explained in Lovasco, supra,
431 U.S. at pages 792-795, many legitimate reasons exist why the government
might delay bringing charges even after it has sufficient evidence to convict.
Defendant argues that the DNA technology used here existed years before
law enforcement agencies made the comparison in this case and that, therefore, the
comparison could have, and should have, been made sooner than it actually was.
Thus, he argues, the state’s failure to make the comparison until 2002 was
negligent. We disagree. A court may not find negligence by second-guessing
how the state allocates its resources or how law enforcement agencies could have
investigated a given case. “[T]he necessity of allocating prosecutorial resources
may cause delays valid under the Lovasco analysis. [Citation.] Thus, the
difficulty in allocating scarce prosecutorial resources (as opposed to clearly
intentional or negligent conduct) [is] a valid justification for delay . . . .” (People
v. Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 915.) It is not enough for a
defendant to argue that if the prosecutorial agencies had made his or her case a
higher priority or had done things a bit differently they would have solved the case
sooner.
In this case, balancing the prejudice defendant has demonstrated against the
strong justification for the delay, we find no due process violation. We agree with
the Court of Appeal’s summary: “[T]he delay was not for the purpose of gaining
an advantage over the defendant. [Citation.] Indeed, the record does not even
establish prosecutorial negligence. The delay was the result of insufficient
15
evidence to identify defendant as a suspect and the limits of forensic technology.
[Citations.] When the forensic technology became available to identify defendant
as a suspect and to establish his guilt, the prosecution proceeded with promptness.
Without question, the justification for the delay outweighed defendant’s showing
of prejudice.”
B. Admissibility of the DNA Evidence
Defendant contends the court erred in admitting the DNA evidence.
Specifically, he contends the evidence regarding the odds that the crime scene
evidence could have come from some other person was inadmissible because the
statistical method used to calculate those odds has not achieved general scientific
acceptance under the standard stated in People v. Leahy (1994) 8 Cal.4th 587 and
People v. Kelly (1976) 17 Cal.3d 24 (sometimes referred to as the Kelly test).
1. Background
As relevant here, the Kelly test can be summarized as follows: The
“admissibility of expert testimony based on ‘a new scientific technique’ requires
proof of its reliability — i.e., that the technique is ‘ “sufficiently established to
have gained general acceptance in the particular field to which it belongs” ’
[citation].” (People v. Venegas (1998) 18 Cal.4th 47, 76, quoting People v. Kelly,
supra, 17 Cal.3d at p. 30.) Once an appellate court has affirmed in a published
opinion a trial court ruling admitting evidence based on a new scientific technique,
the precedent may control future trials, at least until new evidence is presented that
reflects a change in the scientific community’s attitude. (People v. Venegas,
supra, at p. 76.) In a number of respects, DNA evidence has been subjected to the
Kelly test and found admissible. Accordingly, a body of law already exists
regarding such evidence.
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Forensic DNA analysis is a comparison of a person’s genetic structure with
crime scene samples to determine whether the person’s structure matches that of
the crime scene sample such that the person could have donated the sample. We
have explained the comparison process in detail. (People v. Venegas, supra, 18
Cal.4th at pp. 58-60.) The Court of Appeal opinion in this case contains an apt
summary: “With the exception of red blood cells, every cell in the human body
has a nucleus containing the person’s genetic code in the form of DNA. . . . DNA
consists of two parallel spiral sides, a double helix, composed of repeated
sequences of phosphate and sugar. The sides are connected by a series of rungs,
with each rung consisting of a pair of chemical components called bases. . . .
There are four types of bases — adenine (A), cytosine (C), guanine (G), and
thymine (T). A will pair only with T, and C will pair only with G. . . . There are
over three billion base pairs in a person’s DNA. . . . [¶] Except for identical
twins, no two persons have identical DNA. . . . This makes DNA valuable for
forensic purposes. However, there is no practical way of sequencing all three
billion base pairs. . . . Accordingly, forensic scientists test particular regions
called loci that are known to be polymorphic, i.e., variable from person to
person. . . . Scientists have identified loci where a particular pattern of base pairs
is repeated successively for numbers of times that vary from person to person. . . .
These repetitions are referred to as alleles. . . . These alleles can be measured and
compared to determine whether a suspect sample matches an evidentiary
biological sample at each of the loci tested. . . .” (Citations omitted.)
The Court of Appeal explained, “The initial use of DNA for forensic
purposes involved what is called restriction fragment length polymorphism
(RFLP).” But RFLP testing is now obsolete. In this case, the testing was done by
utilizing what is called “polymerase chain reaction” testing using “short tandem
repeats” (PCR-STR). PCR-STR testing has many advantages over RFLP testing.
17
It can test a far smaller sample than RFLP testing requires. It is less susceptible to
sample degradation. It is simpler and less time consuming. Additionally, as the
Court of Appeal also explained, “With the ability to compare numerous loci, the
discrimination power of PCR-STR testing is extremely high.”
Once a match is found, the next question is the statistical significance of the
match. (See People v. Wilson (2006) 38 Cal.4th 1237, 1242.) This case involves
that question. When a suspect’s sample is compared to the crime scene evidence,
and a match is found, “the DNA profile of the matched samples is compared to the
DNA profiles of other available DNA samples in a relevant population database or
databases in order to determine the statistical probability of finding the matched
DNA profile in a person selected at random from the population or populations to
which the perpetrator of the crime might have belonged.” (People v. Soto (1999)
21 Cal.4th 512, 518.) “Experts calculate the odds or percentages — usually stated
as one in some number — that a random person from the relevant population
would have a similar match.” (People v. Wilson, supra, at p. 1239.)
Experts use a statistical method called the “product rule” to calculate the
rarity of the sample in the relevant population. We explained this method in detail
in People v. Soto, supra, 21 Cal.4th at pages 524-525. As the Court of Appeal
summarized it, “The frequency with which each measured allele appears in the
relevant population is estimated through the use of population databases. . . . The
frequencies at each tested locus are multiplied together to generate a probability
statistic reflecting the overall frequency of the complete multilocus profile. . . .
The result reflects the frequency with which the complete profile is expected to
appear in the population. . . . The result is sometimes expressed as the probability
that the DNA of a person selected at random from the relevant population would
match the evidentiary sample at all tested loci. . . .” (Citations omitted.)
18
The product rule was used to calculate the astronomical odds presented in
this case. In order to reach these odds, the criminalist compared 15 loci and found
a match at each one. It is now settled that when a suspect’s sample is compared to
a crime scene sample, the product rule “has gained general acceptance in the
relevant scientific community and therefore meets the Kelly standard for
admissibility.” (People v. Soto, supra, 21 Cal.4th at p. 541.)
Defendant does not challenge the validity of the product rule to calculate
the relevant odds when a suspect’s DNA sample is compared to the crime scene
evidence. But he contends that the situation here is different. Here, the match did
not come about by comparing a suspect’s profile with the crime scene sample but
by a cold hit from a database. Cases like this are sometimes called “trawl cases”
because the match was discovered by searching a database of previously obtained
DNA samples. (4 Faigman et al., Modern Scientific Evidence (2006) Objections
to DNA evidence — Presenting incriminating DNA results — Should match
probabilities be excluded? — The effect of a database search, § 32:11, p. 110
(hereafter Modern Scientific Evidence).) In this case, a database containing about
184,000 DNA profiles was searched to see if any matched the crime scene sample.
Defendant’s profile came back a tentative match. His complete profile was then
compared with the crime scene evidence, resulting in a confirmatory match. The
product rule then established the odds the jury heard. Defendant contends use of
the product rule in this case is a new scientific technique that must, but does not,
pass the Kelly test.
This contention gives rise to two questions. First is whether use of the
product rule to calculate the odds in a cold hit (or trawl) case is a new scientific
technique subject to the Kelly test. As we explain, it is already established that the
product rule reliably shows what it purports to show — the rarity of the genetic
profile in the population group. Accordingly, its admissibility in a cold hit case is
19
a question of relevance, not scientific acceptance, and it is thus not subject to a
further Kelly test. This conclusion causes us to go on to the second question:
Whether the odds calculated by the product rule are relevant, and thus admissible,
in a cold hit case. As we further explain, although the product rule is not the only
available method of statistical analysis in a cold hit case, it is relevant and thus
admissible.
2. Whether Use of the Product Rule in a Cold Hit Case is Subject to
the Kelly Test
If use of the product rule in a cold hit case is a new scientific technique, it
must pass the Kelly test, i.e., it must have gained general acceptance in the field to
which it belongs. (People v. Venegas, supra, 18 Cal.4th at p. 76.) Defendant
argues that it is a new scientific technique subject to the Kelly test and that it fails
the test.
Defendant agrees that using the product rule to calculate the random match
probability makes sense when comparing one suspect’s profile with the crime
scene evidence because, as he explains, the random match probability “estimates
the chance that any single, random person drawn from the relevant population
would have the same DNA profile as that of the unknown person whose DNA was
found at the crime scene.” But he contends that a match made in a cold hit
through a database search is different. He argues as follows: When a single
suspect is compared to the crime scene evidence, “the basic question (‘What is the
probability or chance that a person selected at random from the relevant
population would have a DNA profile matching that of the evidentiary sample’), is
appropriate because the authorities already have reason to suspect one particular
person’s DNA profile will match the evidence sample DNA profile before the two
profiles are compared. [¶] But that same question presupposes the probability
statistic involves a randomly-selected person. It thus cannot be posed in a ‘cold
20
hit’ case, for in such cases the only reason authorities have come to suspect one
particular person is because they already know his DNA profile matches that of
the crime scene evidence. In fact, they already compared the DNA profiles of tens
of thousands (if not hundreds of thousands), of other persons, in order to find him.
[¶] In other words, in a ‘cold hit’ case the suspect is never ‘randomly’ selected
from the general population.” Thus, when a suspect is found by a search of a large
DNA database, the chance of a coincidental match is increased because “a single
genetic profile (from the crime scene evidence) is compared to the very large
number of profiles in these databases.”
To decide this question, the trial court in this case judicially noticed a
lengthy evidentiary hearing conducted in a different criminal case. Accordingly,
the Court of Appeal and this court have similarly judicially noticed that record.
(See Evid. Code, §§ 452, subd. (d), 459.) A number of experts testified at the
hearing. As the Court of Appeal summarized, the witnesses “included Dr. Ranajit
Chakraborty, a renowned expert in human population genetics (see People v. Soto,
supra, 21 Cal.4th at p. 527, fn. 20); Dr. George Sensabaugh, Jr., a forensic
biologist and biochemical geneticist who is an expert in the forensic use of DNA
(see People v. Pizarro (2003) 110 Cal.App.4th 530, 589; People v. Axell [(1991)
235 Cal.App.3d 836, 849]); Gary Sims, who has a master of public health degree
with a specialty in forensic science and is director of the case work section of the
Department of Justice laboratory; Dr. Dan E. Krane, an associate professor of
biological science at Wright State University; Dr. Norah Rudin, a forensic DNA
consultant; and Dr. Laurence Mueller, an ecologist and population geneticist who
has frequently appeared as a defense witness at Kelly hearings (see, e.g., People v.
Soto, supra, 21 Cal.4th at p. 529; People v. Venegas, supra, 18 Cal.4th at p. 72;
People v. Pizarro, supra, 110 Cal.App.4th at p. 595; People v. Smith (2003) 107
Cal.App.4th 646, 662.)”
21
This record indicated that, in a cold hit case, four different methods for
calculating the statistical significance of a match have been suggested. The Court
of Appeal opinion in this case, as well as an opinion from the highest court in the
District of Columbia that also addressed this precise issue, discussed the four
methods. (See U.S. v. Jenkins (D.C. 2005) 887 A.2d 1013, 1019-1020 (Jenkins).)
One method is the random match probability calculated by use of the product rule.
The issue before us is whether this approach is admissible in a cold hit case.
A second method, as the Court of Appeal explained, “was suggested by the
National Research Council in 1992. (Nat. Research Council, DNA Technology in
Forensic Science (1992) (hereafter NRC-1).) . . . The NRC-1 report suggested
that in a databank search, one set of loci could be used to screen and identify a
suspect and then a different set of loci could be used to confirm a match.
Statistical analysis using the product rule would be done on the second set of loci.”
This approach would obviously use fewer loci to calculate the odds than when all
of the loci are considered, which would result in shorter odds; the loci used in the
screening process would be ignored in the statistical evaluation. This approach
would give a result that is reliable, although one that might be unnecessarily
conservative. Because no one questions its reliability, and the only disagreement
is whether a different, less conservative, approach (using all of the loci in
calculating the odds under the product rule) is also valid, we do not discuss this
approach further. (See also Jenkins, supra, 887 A.2d at p. 1022, fn. 17 [not
addressing this approach because it “is no longer accepted or followed by the
relevant scientific community”].)
The third method was suggested in the 1996 report of the National
Research Council. (Nat. Research Council, The Evaluation of Forensic DNA
Evidence (1996) (hereafter 1996 NRC Report).) As the Court of Appeal
explained, under this approach, “the expected frequency of the profile could be
22
calculated through use of the product rule, and the result could then be multiplied
by the number of profiles in the databank. The result would be the expected
frequency of the profile in a sample the size of the databank and thus the random
chance of finding a match in a sample of that size. The result may be significant
when few loci are tested and the discriminatory power of the testing is limited, but
the significance tends to disappear when many loci are tested.” (See 1996 NRC
Rep., supra, at pp. 7, 40, 161.)1 The Jenkins court called this method the
“database match probability” because it gives the probability of a match from the
database. (Jenkins, supra, 887 A.2d at p. 1020.)
An example might help explain this third method. Assume the product rule
calculated a random match odds of one in 1,000,000. If a single suspect were
compared and a match found, the result would be surprising unless the suspect
were the actual donor of the evidence. But if a database of 100,000 were searched,
the odds — or database match probability — would be about one in 10 that a
match would be found even if the actual donor were not in the database. Thus, a
match would be less surprising. If the database had a million profiles, at least one
match would be expected even if the actual donor were not in the databank. The
Jenkins court noted that “[i]t is unclear whether the 1996 recommendation

1
As the Court of Appeal explained, the databank here contained about
184,000 profiles. Even if the numbers of this case were divided by 184,000, the
resulting numbers would still be astronomical. The odds for Hispanics, the group
producing odds most favorable to defendant, would then be about one in five
followed by 18 zeros. We agree with the Court of Appeal that “it seems most
unlikely that the difference would be significant to the jury.”

Indeed, some courts have suggested that, when the odds are like those here,
it might be appropriate for the expert to testify that, except for identical twins or
maybe close relatives, “ ‘it can be concluded to a reasonable scientific certainty
that the evidence sample and the defendant sample came from the same person.’ ”
(People v. Johnson (2006) 139 Cal.App.4th 1135, 1146, fn. 10, quoting Young v.
State
(Md. 2005) 879 A.2d 44, 56; see also People v. Wilson, supra, 38 Cal.4th at
pp. 1248-1249; People v. Barney (1992) 8 Cal.App.4th 798, 817.)
23


advocates the presentation of database match probability alone, or a combination
of database match probability and the rarity statistic (which is the same as the
random match probability). The FBI’s DNA Advisory Board suggests that the
1996 recommendation of the National Research Council is best read to require a
presentation of both the database match probability and the rarity statistic.”
(Jenkins, supra, 887 A.2d at p. 1020.)
The fourth method is variously referred to as the “Balding-Donnelly”
approach, after Professors David Balding and Peter Donnelly, who advocate it (see
Jenkins, supra, 887 A.2d at pp. 1019-1020), or the use of a “Bayesian formula,”
named for the Reverend Thomas Bayes, who created the formula in the 19th
Century. The Jenkins court explained that “[i]nstead of focusing on the
probability of obtaining a match, Balding-Donnelly focuses on the elimination of
other profiles during the search. In their analysis, a match becomes more
significant with larger database searches. They posit that in obtaining a match in a
database search, one simultaneously eliminates other profiles as being the source
of the sample. This elimination of known persons increases the chances that the
identified individual is the actual source of the sample DNA. In Balding and
Donnelly’s model, there is a slightly greater probability that the person identified
is the source of the DNA than that expressed by the random match probability.”
(Jenkins, supra, at p. 1020, italics added.) Thus, this method would result in
evidence slightly more favorable to the prosecution than would use of the product
rule. The Court of Appeal criticized the Bayesian method as inherently confusing,
difficult to explain to a jury, and possibly misleading. Neither party has sought to
admit evidence using this method, and it was not used in this case. Accordingly,
we, like the Jenkins court, express no opinion on whether it would be admissible.
(See Jenkins, supra, 887 A.2d at p. 1025, fn. 19.)
24
Thus, when a suspect is first found by means of a cold hit from a database
search, additional methods can be used to calculate the significance of a match that
do not exist when a sole suspect is compared to the crime scene evidence. The
record in this case suggests some disagreement among experts as to which of these
methods is the best, i.e., the most probative, way to judge the significance of a
cold hit. But the question before us is not what technique is “best,” but whether
use of the product rule in a cold hit case is permissible. As the Court of Appeal in
this case noted, “[n]othing in the Kelly test requires that there be one and only one
approach to a scientific problem. The question is whether scientists significant in
number or expertise publicly oppose a technique as unreliable, not whether some
scientists believe there may be an alternative, perhaps even better, technique
available.” It is already settled that the product rule reliably shows the rarity of the
profile in the relevant population. (People v. Soto, supra, 21 Cal.4th 512.) To
this extent, the product rule has already passed the Kelly test.
The Court of Appeal in this case and other courts that have considered this
question have concluded that use of the product rule in a cold hit case is not the
application of a new scientific technique subject to a further Kelly (or Kelly-like)
test. (People v. Johnson, supra, 139 Cal.App.4th at pp. 1148-1155; Jenkins,
supra, 887 A.2d at pp. 1022-1024 [interpreting its own version of the Kelly test].)
We agree. Jenkins explained its reasoning: “At the heart of this debate is a
disagreement over the competing questions to be asked, not the methodologies
used to answer those questions. The rarity statistic, the database match
probability, and the Balding-Donnelly approach each answer unique and
potentially relevant questions. More importantly, there is no controversy in the
relevant scientific community as to the accuracy of the various formulas. In other
words, the math that underlies the calculations is not being questioned. Each
approach to expressing significance of a cold hit DNA match accurately answers
25
the question it seeks to address. The rarity statistic accurately expresses how rare
a genetic profile is in a given society. Database match probability accurately
expresses the probability of obtaining a cold hit from a search of a particular
database. Balding-Donnelly accurately expresses the probability that the person
identified through the cold hit is the actual source of the DNA in light of the fact
that a known quantity of potential suspects was eliminated through the database
search. These competing schools of thought do not question or challenge the
validity of the computations and mathematics relied upon by the others. Instead,
the arguments raised by each of the proponents simply state that their formulation
is more probative, not more correct. Thus, the debate . . . is one of relevancy, not
methodology . . . .” (Jenkins, supra, 887 A.2d at pp. 1022-1023, fn. omitted.)
As the Jenkins court further noted, “There still exists controversy as to the
appropriateness of the use of the rarity statistic, database match probability, or
Balding-Donnelly calculation in a cold hit DNA match. This debate, however,
still does not address the mathematics or methodology of the various
computations. The argument . . . is to the relevancy of the statistics, not the
soundness of the calculation. . . . [¶] The rarity statistic, the database match
probability, and the Balding-Donnelly formulation do not purport to address the
same issue. In reality, each formula answers a distinctly different question that
may be of concern in a cold hit case. . . . [T]he rarity statistic simply answers the
question: ‘How rare is this specific combination of genetic material’? The
database match probability answers the question: ‘What is the chance/probability
of obtaining a match by searching this particular database’? And the Balding-
Donnelly calculation answers the question: ‘What is the chance/probability that
the person identified is the source of the sample in light of the fact that all other
26
persons in the database were eliminated’?[2] [Fn. omitted.] None of the questions
are the same; more importantly, none of the answers are mutually exclusive. [¶]
The debate that exists is solely concerned with which number — rarity, database
match probability, Balding-Donnelly, or some combination of the above — is
most relevant in signifying the importance of a cold hit.” (Jenkins, supra, 887
A.2d at pp. 1024-1025.)
The Court of Appeal here said much the same thing in discussing the record
of this case: “The expert testimony presented to the trial court established that to
the extent there is a debate, it is over relevance rather than reliability. Most of the
experts who testified agreed that the rarity of the DNA profile in the population is
a relevant question. Dr. Mueller, the defense expert, did not disagree that the
unmodified product rule establishes rarity in the population, but said he does not
find that to be the interesting question. It was apparent that he was referring to
relevance and not reliability. [¶] The issue [under the Kelly test] is reliability.
(People v. Soto, supra, 21 Cal.4th at p. 519.) The court does not determine
whether the technique is reliable as a matter of scientific fact; rather, the court
defers to the scientific community and considers whether the technique is
generally accepted as reliable in the scientific community. (Ibid.)” But when, as
here, use of the product rule has been found reliable, “it was for the trial court, not

2
The record in this case does not make clear whether the search that resulted
in the cold hit was of the entire database, and thus everyone but defendant was
eliminated, or whether, as defendant contends, the search continued only until a
match was found, and the entire database was not searched. This uncertainty
might implicate the validity of using the Balding-Donnelly approach, but that
approach was not used in this case. The uncertainty is not relevant to whether the
product rule was properly used in this case. Accordingly, we will assume that the
search did not necessarily exclude everyone in the database but only those
searched until the cold hit was found.
27


the scientific community, to determine the relevance of the technique to this
criminal prosecution.”
Relevancy is a legal issue for courts to answer. We agree with Jenkins that
“[w]hat is and is not relevant is not appropriately decided by scientists and
statisticians. This court recognizes that as jurists we are not always in a position to
determine what is good science and what is bad science. . . . Questions of
relevancy, however, have never been outside of judicial competence. Determining
what evidence is and is not relevant is a hallmark responsibility of the trial judge
and that responsibility is not appropriately delegated to parties outside the court.”
(Jenkins, supra, 887 A.2d at p. 1025.)
For these reasons, we conclude that the admissibility of the calculation
derived from the product rule in this case turns on the legal question whether it is
relevant. We now consider that question.
3. Whether Evidence Obtained by Use of the Product Rule Is Relevant
in a Cold Hit Case
“Relevant evidence is evidence ‘having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the
action.’ (Evid. Code, § 210.) ‘ “The test of relevance is whether the evidence
tends, ‘logically, naturally, and by reasonable inference’ to establish material facts
such as identity, intent, or motive.” ’ ” (People v. Wilson, supra, 38 Cal.4th at p.
1245.) Under this test, the product rule generates relevant evidence even in a cold
hit case.
It is certainly correct that, as one treatise that discussed this question put it,
“the picture is more complicated when the defendant has been located through a
database search . . . .” (Modern Scientific Evidence, supra, § 32:11, p. 111.) The
Jenkins court recognized this circumstance. It explained that in a non-cold-hit
case, the number derived from the product rule “represents two concepts: (1) the
28
frequency with which a particular DNA profile would be expected to appear in a
population of unrelated people, in other words, how rare is this DNA profile
(‘rarity statistic’), and (2) the probability of finding a match by randomly selecting
one profile from a population of unrelated people, the so-called ‘random match
probability.’ ” (Jenkins, supra, 887 A.2d at p. 1018.)
The court explained that the government had conceded “that in a cold hit
case, the product rule derived number no longer accurately represents the
probability of finding a matching profile by chance. The fact that many profiles
have been searched increases the probability of finding a match.” (Jenkins, supra,
887 A.2d at p. 1018, fn. omitted.) The footnote in the middle of this quotation
elaborated: “In other words, the product rule number no longer accurately
expresses the random match ‘probability.’ That same product rule number,
however, still accurately expresses the rarity of the DNA profile. Random match
probability and rarity, while both identical numbers, represent two distinct and
separate concepts. Only one of those concepts is affected by a database search:
the random match probability.” (Id. at p. 1018, fn. 7.) The court noted that “the
‘database match probability’ [the approach suggested in the 1996 NRC Report]
more accurately represents the chance of finding a cold hit match” and “can
overcome the ‘ascertainment bias’ of database searches. ‘Ascertainment bias’ is a
term used to describe the bias that exists when one searches for something rare in
a set database.” (Id. at pp. 1018-1019.)
Although the product rule no longer represents the random match
probability in a cold hit case, the Jenkins court ultimately agreed with the
government’s argument “that regardless of the database search, the rarity statistic
is still accurately calculated and appropriately considered in assessing the
significance of a cold hit. . . . [W]hile a database search changes the probability of
obtaining a match, it does not change how rare the existence of that specific
29
profile is in society as a whole. . . . This rarity is . . . both consistent and relevant
regardless of the fact that [the defendant’s] identification is the product of a
database search.” (Jenkins, supra, 887 A.2d at p. 1019.)
In a non-cold-hit case, we said that “[i]t is relevant for the jury to know that
most persons of at least major portions of the general population could not have
left the evidence samples.” (People v. Wilson, supra, 38 Cal.4th at p. 1245.) We
agree with other courts that have considered the question (the Court of Appeal in
this case; People v. Johnson, supra, 139 Cal.App.4th 1135; and Jenkins, supra,
887 A.2d 1013) that this remains true even when the suspect is first located
through a database search. The database match probability ascertains the
probability of a match from a given database. “But the database is not on trial.
Only the defendant is.” (Modern Scientific Evidence, supra, § 32:11, pp. 118-
119.) Thus, the question of how probable it is that the defendant, not the database,
is the source of the crime scene DNA remains relevant. (Id. at p. 119.) The rarity
statistic addresses this question.
Defendant was a potential suspect shortly after Ollie George was murdered
in 1976. If modern DNA technology and statistical methods had existed then, law
enforcement authorities might have compared his DNA to the crime scene DNA
and applied the product rule to obtain the same results ultimately obtained after the
database search that actually occurred. The relevance and admissibility of the
results obtained in that fashion would be beyond question today. The fact that the
match ultimately came about by means of a database search does not deprive the
rarity statistic of all relevance. It remains relevant for the jury to learn how rare
this particular DNA profile is within the relevant populations and hence how likely
30
it is that someone other than defendant was the source of the crime scene
evidence.3
Accordingly, the trial court correctly admitted the evidence, and the Court
of Appeal correctly upheld that admission.
III. CONCLUSION
We affirm the judgment of the Court of Appeal.
CHIN,
J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.

3
The conclusion that statistics derived from the product rule are admissible
in a cold hit case does not mean that they are the only statistics that are relevant
and admissible. The database match probability statistic might also be admissible.
As explained (see fn. 1, ante), it is unlikely the database match probability statistic
would have been significant to the jury in this case given the size of even that
number. But in a different case, if the database were large enough and the odds
shorter than those here, the database match probability statistic might also be
probative. Nothing we say prohibits its admission.
31


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Nelson
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted
XXX 142 Cal.App.4th 696
Rehearing Granted

__________________________________________________________________________________

Opinion No. S147051
Date Filed: June 16, 2008
__________________________________________________________________________________

Court: Superior
County: Sacramento
Judge: Gary S. Mullen

__________________________________________________________________________________

Attorneys for Appellant:

Cara DeVito, under appointment by the Supreme Court, for Defendant and Appellant.

John T. Philipsborn and Linda F. Robertson for California Attorneys for Criminal Justice and California
Public Defenders’ Association as Amici Curiae on behalf of Defendant and Appellant.

Jennifer Friedman, Public Defender (Los Angeles); and Edward J. Ungvarsky for Los Angeles Public
Defender and Public Defender Service for the District of Columbia as Amici Curiae on behalf of Defendant
and Appellant.


__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, J.
Robert Jibson, Janet E. Neeley, Enid A. Camps and Judy Kaida, Deputy Attorneys General, for Plaintiff
and Respondent.

Bonnie M. Dumanis, District Attorney (San Diego), Catherine Stephenson and James E. Atkins, Deputy
District Attorneys, for Office of the District Attorney of San Diego County as Amicus Curiae on behalf of
Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

Cara DeVito
6520 Platt Avenue
West Hills, CA 91307-3218
(818) 999-0456

Judy Kaida
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 95814
(916) 327-0306


Petition for review after the Court of Appeal affirmed a judgment of conviction of a criminal offense. This case includes the following issues: (1) Is the methodology for assessing the statistical significance of a "cold hit" from a DNA database a novel scientific question requiring proof of general scientific acceptance under People v. Kelly (1976) 17 Cal.3d 24 and People v. Leahy (1994) 8 Cal.4th 587? (2) How should the statistical significance of a "cold hit" from a DNA database be calculated?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 06/16/200843 Cal. 4th 1242, 185 P.3d 49, 78 Cal. Rptr. 3d 69S147051Review - Criminal Appealclosed; remittitur issued

PEOPLE v. BOYSEN (S155417)


Parties
1Nelson, Dennis Louis (Defendant and Appellant)
California State Prison, Solano
Represented by Cara Devito
Attorney at Law
6520 Platt Avenue, PMB 834
West Hills, CA

2The People (Plaintiff and Respondent)
Represented by Judy Kaida
Office of the Attorney General
P.O. Box 94425
1300 "I" Street
Sacramento, CA

3Office Of The District Attorney San Diego County (Amicus curiae)
Represented by James E. Atkins
Office of the District Attorney
330 W. Broadway, Suite 920
San Diego, CA

4California Attorneys For Criminal Justice (Amicus curiae)
Represented by John T. Philipsborn
Attorney at Law
507 Polk Street, Suite 250
San Francisco, CA

5California Public Defenders Association (Amicus curiae)
Represented by Linda Frey Robertson
California Appellate Project
101 Second Street, Suite 600
San Francisco, CA

6Los Angeles County Public Defender (Amicus curiae)
Represented by Jennifer Ann Friedman
Office of the Los Angeles County Public Defender
210 W. Temple Street, 19th Floor
Los Angeles, CA

7Public Defender Service For The District Of Columbia (Amicus curiae)
Represented by Jennifer Ann Friedman
Office of the Los Angeles County Public Defender
210 W. Temple Street, 19th Floor
Los Angeles, CA


Disposition
Dec 31 1969Opinion: Affirmed

Dockets
Dec 31 1969Received premature petition for review
  Appellant Dennis Louis Nelson Attorney Cara DeVito, Court of Appeal appt.
Dec 31 1969Case start: Petition for review filed
 
Dec 31 1969Record requested
 
Dec 31 1969Received Court of Appeal record
  one doghouse
Dec 31 1969Received additional record
  10 doghouses (volumes 2 thru 11)
Dec 31 1969Petition for review granted (criminal case)
  Votes: George, C. J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Dec 31 1969Received Court of Appeal record
  one file jacket
Dec 31 1969Issues ordered limited
  The issues to be briefed and argued are limited to the following: (1) Is the methodology for assessing the statistical significance of a "cold hit" from a DNA database a novel scientific question requiring proof of general scientific acceptance under People v. Kelly (1976) 17 Cal.3d 24 and People v. Leahy (1994) 8 Cal.4th 587? (2) How should the statistical significance of a "cold hit" from a DNA database be calculated? (3) Was defendant denied his right to a speedy trial under the state and federal Constitutions, where the complaint was filed 26 years after the crime but only two months after DNA tests linked him to the crime?
Dec 31 1969Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Cara Devito is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Dec 31 1969Request for extension of time filed
  counsel for appellant requests a 60-day extension of time to March 13, 2007, to file the opening brief on the merits.
Dec 31 1969Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including February 11, 2007.
Dec 31 1969Request for judicial notice filed (granted case)
  counsel for appellant (Dennis Louis Nelson)
Dec 31 1969Request for extension of time filed
  counsel for aplt. requests thirty (30) day extension of time to file the opening brief on the merits.
Dec 31 1969Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief is extended to 30 days after the date that the court rules on appellant's January 26, 2007, request for judicial notice.
Dec 31 1969Request for judicial notice granted
  Appellant's request for judicial notice, filed January 26, 2007, is granted. Appellant is directed, within March 23, 2007, to file with this court one copy, and to serve the Attorney General with one copy, of the following transcripts in the case of People v. Robinson, Third District Court of Appeal No. C044703: Clerk's transcript, pages 463-531, 627-654, 673-679, 711-726, 745-760, 762-770, 775-781, 787-816, 865-893, 903-911; Reporter's transcript, pages 541-601, 701-2611, 2642-2662. Appellant shall have until March 23, 2007 in which to serve and file the opening brief on the merits.
Dec 31 1969Filed:
  counsel for aplt. (Nelson) Judicial Notice Documents Vols. 1 through 8.
Dec 31 1969Request for extension of time filed
  Counsel for appellant requests 32-day extension of time to April 23, 2007, to file the opening brief on the merits.
Dec 31 1969Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's opening breif on the merits ia hereby extended to and including April 23, 2007. No further extensions of time are contemplated.
Dec 31 1969Request for extension of time filed
  counsel for aplt. requests 1-week extension of time to file the opening brief on the merits.
Dec 31 1969Extension of time granted
  On application of appellant and good cause appearing it is ordered that the time to serve and file the opening brief on the metits is extended to and including 4-30-2007
Dec 31 1969Application to file over-length brief filed
  counsel for aplt.
Dec 31 1969Received:
  oversized brief on the merits.
Dec 31 1969Order filed
  On application of appellant and good cause appearing, it is ordered that the application to file the oversized brief on the merits is granted.
Dec 31 1969Opening brief on the merits filed
  counsel for appellant.
Dec 31 1969Request for extension of time filed
  Respondent requests a 30-day extension to and including July 3, 2007, to file respondent's answer brief on the merits. by Judy Kaida, counsel
Dec 31 1969Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the respondent's answer brief on the merits is hereby extended to and including July 3, 2007.
Dec 31 1969Compensation awarded counsel
  Atty DeVito
Dec 31 1969Request for extension of time filed
  counsel for respondent requests extension of time to 8-2-07, to file the answer brief.
Dec 31 1969Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including August 2, 2007.
Dec 31 1969Request for extension of time filed
  counsel for respondent requests extension of time to Sept. 1, 2007, to file the answer brief on the merits.
Dec 31 1969Motion filed (non-AA)
  counsel for respondent Motion for Augmentation of Judicially - Noticed Records
Dec 31 1969Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including September 4, 2007. No further extensions of time are contemplated.
Dec 31 1969Request for judicial notice granted
  Respondent's motion for augmentation of judicially noticed records, filed August 6, 2007, is granted. The record is deemed augmented to include the copies of the documents attached to the motion.
Dec 31 1969Request for extension of time filed
  Counsel for respondent requests extension of time to September 25, 2007, to file the answer brief on the merits.
Dec 31 1969Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's answer brief on the merits is hereby extended to and including September 25, 2007. No further extensions of time will be granted.
Dec 31 1969Received:
  counsel for resp. over-sized respondent's brief.
Dec 31 1969Application to file over-length brief filed
  counsel for respondent.
Dec 31 1969Answer brief on the merits filed
  by counsel for respondent (w/permission)
Dec 31 1969Request for extension of time filed
  Counsel for appellant requests ext. of time to 11-16-07 to file the reply brief on the merits. *** granted *** order being prepared.
Dec 31 1969Extension of time granted
  On appllication of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including November 16, 2007. No further extensions of time are contemplated.
Dec 31 1969Received:
  counsel for aplt. (Nelson) oversized Reply Brief. (8.25(b))
Dec 31 1969Application to file over-length brief filed
  counsel for aplt. (Nelson)
Dec 31 1969Reply brief filed (case fully briefed)
  counsel for aplt. w/permission
Dec 31 1969Received application to file Amicus Curiae Brief
  Office of the District Attorney, San Diego County in support of respondent.
Dec 31 1969Received application to file Amicus Curiae Brief
  Los Angeles County Public Defender and Public Defender Service for the District of Columbia Deputy Public Defender Jennifer Friedman
Dec 31 1969Received application to file Amicus Curiae Brief
  California Attorneys for Criminal Justice and California Public Defenders' Assoc. in support of aplt.
Dec 31 1969Permission to file amicus curiae brief granted
  California Attorneys for Criminal Justice in support of appellant.
Dec 31 1969Amicus curiae brief filed
  The application of the California Attorneys for Criminal Justice and California Public Defenders' Association for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Dec 31 1969Permission to file amicus curiae brief granted
  Office of the District Attorney of San Diego County in support of respondent.
Dec 31 1969Amicus curiae brief filed
  The application of the Office of the District Attorney of San Diego County for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Dec 31 1969Permission to file amicus curiae brief granted
  The application of the Los Angeles County Public Defender and the Public Defender Service for the District of Columbia for permission to file an amicus curiae brief in support of appellant is hereby granted An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Dec 31 1969Amicus curiae brief filed
  Los Angeles County Public Defender and the Public Defender Service for the District of Columbia in support of appellant by Jennifer Friedman, counsel
Dec 31 1969Filed:
  counsel for aplt. Request for Clarification of Grant of Review re: a/c brief of District Atty. of San Diego Co. w/ 20-day request for extension of time to respond.
Dec 31 1969Request for extension of time filed
  counsel for respondent requests extension of time to 2-22-08, to file the consolidated answer to amicus curiae briefs.
Dec 31 1969Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the consolidated answer to amicus curiae briefs is extended to and including February 14, 2008.
Dec 31 1969Motion denied
  The "request for clarification of grant of review on 'precomplaint delay/due process' issue in this case, based on amicus brief filed by the Office of the District Attorney, San Diego County," filed on January 8, 2008, is denied. Appellant may file an answer to any amicus curiae brief on or before February 13, 2008.
Dec 31 1969Response to amicus curiae brief filed
  counsel for resp. (People)
Dec 31 1969Response to amicus curiae brief filed
  counsel for aplt.. (Nelson) (8.25(b))
Dec 31 1969Filed:
  counsel for aplt. amended proof of service to response to a/c brief.
Dec 31 1969Case ordered on calendar
  to be argued on Thursday, May 8, 2008, at 1:30 p.m. in San Francisco
Dec 31 1969Filed:
  Amicus curiae Calif. Attorneys for Criminal Justice, et al., request permission to file letter brief in opposition to Motion of respondent.
Dec 31 1969Opposition filed
  California Attorneys for Criminal Justice and California Public Defenders' Association to respondent's motion to strike Exhibit A of a/c brief. w/permisison
Dec 31 1969Filed:
  Amicus Curiae, California Attorneys for Criminal Justice and California Public Defender's Association, to expand oral argument.
Dec 31 1969Application denied
  The request, filed on April 22, 2008, by amici curiae California Attorneys for Criminal Justice and California Public Defender's Association, to expand oral argument time to present argument, is hereby denied. (See California Rules of Court, rule 8.524(g)).
Dec 31 1969Order filed
  Respondent's request that this court strike the attachment to the amicus curiae brief of the California Attorneys for Criminal Justice and California Public Defenders' Association is denied.
Dec 31 1969Cause argued and submitted
 
Dec 31 1969Opinion filed: Judgment affirmed in full
  OPINION BY: Chin, J. --- joined by : George, C.J., Kennard, Baxter, Werdegar, Moreno, and Corrigan, JJ.
Dec 31 1969Remittitur issued (criminal case)
 
Dec 31 1969Received:
  Receipt for remittiur from Court of Appeal, Third Appellate District.
Dec 31 1969Compensation awarded counsel
  Atty Devito

Briefs
Dec 31 1969Opening brief on the merits filed
 
Dec 31 1969Answer brief on the merits filed
 
Dec 31 1969Reply brief filed (case fully briefed)
 
Dec 31 1969Amicus curiae brief filed
 
Dec 31 1969Amicus curiae brief filed
 
Dec 31 1969Amicus curiae brief filed
 
Dec 31 1969Response to amicus curiae brief filed
 
Dec 31 1969Response to amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Mar 12, 2009
Annotated by diana teasland

Written by Pat Hovakimian

BACKGROUND

Law enforcement compared DNA evidence from a 1976 murder scene with the Defendant’s DNA in 2002. The Defendant was subsequently charged, tried, and convicted for murder. During the course of the trial, the government presented the DNA evidence and evidence that the chance the DNA came from someone other than the Defendant was one in 930 sextillion. The Defendant appealed his conviction, arguing that a violation of his constitutional rights to due process and a fair trial and that the DNA evidence was improperly admitted. The Supreme Court of California affirmed the conviction, concluding that the justification for the delay in charging the Defendant in 2002 with the 1976 crime outweighed the prejudice the Defendant suffered from the delay in the trial. Moreover, in affirming the conviction, the Court concluded the DNA evidence was properly admitted at trial.

PROCEDURAL HISTORY

The Defendant was tried and convicted in 2004 of first degree felony murder in Superior Court, Sacramento County, case number 02F06021, with Hon. Gary S. Mullen, Jr. presiding.

The Third Appellate District affirmed the conviction in 2006 in an opinion authored by Hon. Arthur Scotland, and joined by Hon. Harry Hull, Jr., and Hon. Tani Cantil-Sakauye. 142 Cal.App.4th 696 (2006) .