Stanford Law School - Robert Crown Law Library

Filed 7/6/06

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S130157
v.
Ct.App.
1/3
A101459
WILLIAM CURTIS WILSON,
Solano
County
Defendant and Appellant.
Super. Ct. No. FCR182521

This murder case presents a narrow, but important, question regarding the
admissibility of deoxyribonucleic acid (DNA) evidence to prove identity in
criminal prosecutions. A DNA comparison of blood found at the crime scene with
defendant’s blood resulted in a match. That is, defendant’s genetic profile
matched that of the blood at the crime scene so that he could not be excluded as a
donor of that blood. Similarly, a DNA comparison of blood found on defendant’s
pants when he was arrested with the victim’s blood resulted in a match, so that the
victim could not be excluded as a donor of that blood. Obviously, evidence
tending to show that defendant’s blood was found at the crime scene, and that the
victim’s blood was on defendant’s pants, would be highly probative to whether
defendant was the killer.
When a match is found, the next question is the statistical significance of
the match. Of course, a match is less significant if the blood could have come
from many persons rather than from only a few. Experts calculate the odds or
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percentages—usually stated as one in some number—that a random person from
the relevant population would have a similar match. The question here revolves
around exactly what is the relevant population. The question is complicated by the
fact that the odds vary with different racial and ethnic groups. Because of this
variation, separate databases are maintained for different population groups, and
the odds for each group are calculated separately. In this case, as in many cases,
no evidence exists of the racial or ethnic identity of the perpetrator other than
evidence indicating that defendant was the perpetrator. Over defense objection,
the trial court permitted the prosecution to present evidence of the odds as to the
three most common population groups in this country—Caucasians, African-
Americans, and Hispanics. For example, the evidence showed that only one
Caucasian in 96 billion would match the crime scene blood that matched
defendant’s profile.
Defendant contends the court erred. Relying heavily on the opinions in
People v. Pizarro (1992) 10 Cal.App.4th 57 (Pizarro I), and especially, People v.
Pizarro (2003) 110 Cal.App.4th 530 (Pizarro II), he argues that evidence
regarding any particular population group is irrelevant absent independent
evidence that the perpetrator was a member of that group. The Court of Appeal
concluded that the trial court correctly admitted the evidence. We agree. As
Justice Parrilli, author of the majority opinion below, stated, “When the
perpetrator’s race is unknown, the frequencies with which the matched profile
occurs in various racial groups to which the perpetrator might belong are relevant
for the purpose of ascertaining the rarity of the profile.”
I. FACTS AND PROCEDURAL HISTORY
Around 6:15 p.m. on April 6, 2000, the body of 13-year-old Sarah Phillips
was found on the living room floor of her Vacaville home. She had been strangled
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with a telephone cord, and her body had suffered multiple bruises, scrapes, and
scratches. Her pants and panties had been removed, and her shirt was pushed up.
Defendant was arrested around 2:00 a.m. on the morning after the killing
and charged with her murder. He had visited the victim’s house regularly while
dating her older sister three years earlier. DNA evidence as well as other evidence
implicated him as the perpetrator. The Court of Appeal summarized the non-DNA
evidence: “[Defendant] aggressively propositioned several women before the
assault on Sarah, showing interest in whether they lived alone; he admitted
speaking with Sarah around the time of the killing when she was alone at her
home, where the killing occurred; he was seen by witnesses in the area before the
killing, without scratches, and after the killing, with scratches consistent with the
struggle indicated by the crime scene evidence; and shortly after the murder he
told a witness he had done something bad, which he could not ‘fix.’ ”
The prosecution also presented DNA evidence. Three kinds of DNA tests
(D1S80, DQA1 polymarker, and STR) were performed on bloodstains found on
the victim’s clothing and on defendant’s clothing when he was arrested. All of the
tests matched defendant’s genetic profile to blood on the victim’s jeans, and the
victim’s profile to blood on defendant’s pants. The STR testing also matched the
victim to a hair found in defendant’s pants, and both the victim and defendant to
blood found under the victim’s fingernail.
The STR test was the most sensitive. It compared nine genetic markers and
included a marker for gender discrimination. Nicola Shea, a criminalist with the
Sacramento laboratory of the California Department of Justice (Department), was
the prosecution’s STR expert. She testified that, to help juries understand the
significance of a DNA match, the Department followed the statistical approach
recommended by a 1996 report of the National Resource Center for presenting the
frequency with which genetic profiles occur. (Nat. Resource Center, The
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Evaluation of Forensic DNA Evidence (1996) (hereafter 1996 NRC Report).) The
Department used databases that the Federal Bureau of Investigation published in
the Journal of Forensic Sciences reflecting profile frequencies in the Caucasian,
Hispanic, and African-American populations, “because those are the major
populations in our country and in our state.”
Shea testified she used all three databases to avoid making assumptions
about the ethnic background of the perpetrator. Data for other groups, such as
Native Americans, would also be compared if information had indicated another
group might be a source of the evidence sample—for example, if the crime had
occurred on an Indian reservation. She explained that “the same profile will show
up with a different frequency in the different populations.” However, she also said
that “the three populations given give you a ballpark of how often you would
expect to see that profile in those populations. If something is extremely rare in
those three populations, you might expect it for that many markers to be extremely
rare in one of the other populations.” When nine genetic markers are used in the
analysis, the result would be a “pretty discriminating number” no matter what
population database was used.
Defendant’s genetic profile would be expected to occur in one of 96 billion
Caucasians, one of 180 billion Hispanics, and one of 340 billion African-
Americans. The victim’s genetic profile would be expected to occur in one of 110
trillion Hispanics, one of 140 trillion Caucasians, and one of 610 trillion African-
Americans. Criminalist Shea noted that these profiles were extremely rare; the
world contains only about six and a half to seven billion human beings.
Defendant objected to the introduction of these profile frequencies, arguing
that the prosecution had failed to lay a foundation for this evidence because it did
not establish the race of the persons who left the blood samples. The trial court
disagreed and admitted the evidence. The jury found defendant guilty of first
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degree murder with use of a dangerous weapon during the commission of an
attempted rape and a lewd act on a child.
Defendant appealed. The Court of Appeal found that the trial court
properly admitted the DNA evidence and affirmed the judgment. We granted
review to resolve a conflict between this opinion and Pizarro II, supra, 110
Cal.App.4th 530.
II. DISCUSSION
“DNA analysis . . . is a process by which characteristics of a suspect’s
genetic structure are identified, are compared with samples taken from a crime
scene, and, if there is a match, are subjected to statistical analysis to determine the
frequency with which they occur in the general population.” (People v. Barney
(1992) 8 Cal.App.4th 798, 805.) “[O]nce analysis and comparison result in the
declaration of a ‘match,’ 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.)
As the Court of Appeal in this case explained, “Profile frequencies within
the major racial groups in the United States (Caucasian, African-American,
Hispanic, East Asian, and Native American) vary to such an extent that separate
DNA databases are maintained for the purpose of providing accurate estimates of
profile frequency. (1996 NRC Rep., pp. 28, 57-58, 98, 151; see also People v.
Soto, supra, 21 Cal.4th at p. 526, fn. 18.)” (Fn. omitted.) The question here is
which, if any, of these databases are relevant when the racial identity of the
persons who left the test samples is unknown.
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The trial court permitted the prosecution to present evidence of profile
frequency within the three most common populations in this state and country—
Caucasian, Hispanic, and African-American. Defendant contends that because no
independent evidence exists that the donor of the blood samples at the crime scene
and on his pants belonged to any particular population group, the frequency of
these groups is irrelevant. He relies primarily on the two Pizarro cases. (Pizarro
I, supra, 10 Cal.App.4th 57; Pizarro II, supra, 110 Cal.App.4th 530.)
The Pizarro defendant was half Hispanic and half Caucasian. Because of
this, the prosecution expert calculated the odds of an Hispanic and a Caucasian
being the donor of a certain semen sample. (Pizarro I, supra, 10 Cal.App.4th at p.
64; Pizarro II, supra, 110 Cal.App.4th at p. 631, fn. 81.) In the first appeal, the
Court of Appeal held that the prosecution had not established that the procedures,
including use of the population data bases, had gained general acceptance in the
scientific community. (See generally People v. Leahy (1994) 8 Cal.4th 587.) It
remanded the matter to the trial court for an evidentiary hearing. (Pizarro I,
supra, at pp. 95-96.) On remand, the trial court held the hearing, concluded that
the evidence had been properly admitted, and reinstated the judgment. The Court
of Appeal reversed again in Pizarro II, supra, 110 Cal.App.4th 530.
In part, the Pizarro opinions condemned presenting evidence solely of the
odds that a person of the defendant’s population group was the donor. (See
Pizarro I, supra, 10 Cal.4th at pp. 93-94; Pizarro II, supra, at p. 629-631 & fn.
79.) On this point, the court was on solid ground. As one recent commentator has
explained, “One strangely persistent fallacy in the interpretation of DNA evidence
is that the relevant ethnic or racial population in which to estimate a DNA profile
frequency necessarily is that of the defendant. The issue has been cogently
analyzed, and it should be clear that the relevant population is the entire class of
plausible perpetrators.” (Kaye, Logical Relevance: Problems with the Reference
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Population and DNA Mixtures in People v. Pizarro (2004) 3 Law, Probability &
Risk 211, 211 (hereafter Kaye1); see also the authority collected in Pizarro II,
supra, at pp. 629-630, fn. 79.) Accordingly, we agree with the Pizarro opinions
that a trial court should not admit evidence of the odds solely regarding the
defendant’s population group. Similarly, when the match involves the victim, the
court should not admit evidence of the odds solely regarding the victim’s
population group.
As the Court of Appeal explained, this case does not present this problem:
“[T]here is no suggestion in the record that the databases used by the DNA expert
for calculating profile frequencies were chosen based on Wilson’s or Sarah’s
racial background. Witnesses described Wilson as a light-skinned Black man.
The police report described Sarah as White. Shea testified that she followed
standard practice of determining the frequency of the matched profiles using
Caucasian, Hispanic, and African-American databases, in order to avoid making
assumptions about the ethnic background of the perpetrator or the victim. (Shea
misspoke in reference to the ‘victim,’ whose ethnic identity was known; it was the
ethnicity of the person who left the bloodstains and the hair on Wilson’s pants,
which matched Sarah’s profile, that was in question.)”
But the court in Pizarro II went on to say that, absent independent evidence
of the population group to which the perpetrator belonged, any evidence regarding
any particular group was irrelevant and hence inadmissible. “[I]n the absence of
sufficient evidence of the perpetrator’s ethnicity, any particular ethnic frequency is
irrelevant. The problem is . . . one of preliminary fact . . . . It does not matter how

1
Professor Kaye was a member of the Committee of DNA Forensic Science
that helped prepare the 1996 NRC Report. We have treated that report as
authoritative. (People v. Soto, supra, 21 Cal.4th at p. 516; People v. Venegas
(1998) 18 Cal.4th 47, 89; see also People v. Reeves (2001) 91 Cal.App.4th 14, 41-
42.)
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many Hispanics, Caucasians, Blacks, or Native Americans resemble the
perpetrator if the perpetrator is actually Asian. If various ethnic frequencies are
presented to the jury, each will have been admitted without adequate foundation.”
(Pizarro II, supra, 110 Cal.App.4th at p. 632.) The court believed that the
proponent of the evidence (here the prosecution) need only present evidence of
this preliminary fact—the perpetrator’s ethnicity—“sufficient for a trier of fact to
reasonably find by a preponderance of the evidence that the fact exists.” (Pizarro
II, supra, 110 Cal.App.4th at pp. 542-543.)
This latter conclusion is very significant. Professor Kaye summarized its
potential impact. “[T]he Pizarro court announced that giving a range of
frequencies for the major racial or ethnic groups in the United States is
unacceptable. Since providing statistics from several racial groups is the standard
way of assessing the significance of a match in cases in which the racial and ethnic
status of the perpetrator of the crime initially is unknown, the opinion casts doubt
on the outcomes of innumerable cases.” (Kaye, supra, 3 Law, Probability & Risk
at p. 214.)
The Court of Appeal here disagreed with this portion of Pizarro II. “We
believe the Pizarro court’s insistence that the database used to calculate the profile
frequency must be drawn from the perpetrator’s racial group was misplaced. The
random-match probability is meant to measure the rarity of the genetic profile
detected in the evidence sample and in the defendant by estimating the frequency
with which it occurs in the population of possible suspects. As explained in the
1996 NRC Report:
“ ‘Suppose that a DNA sample from a crime scene and one from a suspect
are compared, and the two profiles match at every locus tested. Either the suspect
left the DNA or someone else did. We want to evaluate the probability of finding
this profile in the “someone else” case. That person is assumed to be a random
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member of the population of possible suspects. So we calculate the frequency of
the profile in the most relevant population or populations. The frequency can be
called the random-match probability, and it can be regarded as an estimate of the
answer to the question: What is the probability that a person other than the
suspect, randomly selected from the population, will have this profile? The
smaller that probability, the greater the likelihood that the two DNA samples came
from the same person.’ (1996 NRC Rep., p. 127, italics added.)
“The population of possible suspects frequently includes a range of
‘potential perpetrators,’ whose numbers and race depend on what is known about
the circumstances of the crime. When the perpetrator’s race is unknown, the
frequencies with which the matched profile occurs in various racial groups to
which the perpetrator might belong are relevant for the purpose of ascertaining the
rarity of the profile.”
We agree with the Court of Appeal. 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. Harris (2005) 37 Cal.4th 310, 337.) As Professor Kaye notes, “Contrary to the
Pizarro court’s assertions, in a ‘general population case’—one in which the
investigation cannot be limited to a particular racial group—the statistics for a
range of groups surely are relevant.” (Kaye, supra, 3 Law, Probability & Risk at
pp. 215-216.) It 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. This
conclusion is consistent with the recommendations of the 1996 NRC Report. “In
the great majority of cases, very little is known about the person who left the DNA
evidence . . . . It might be known that the DNA came from a white person, in
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which case the white database is appropriate. If the race is not known or if the
population is of racially mixed ancestry, the calculations can be made with each of
the appropriate databases and these presented to the court.” (1996 NRC Rep.,
supra, at pp. 113-114.) Accordingly, the report’s recommendation 4.1 states: “If
the race of the person who left the evidence-sample DNA is known, the database
for the person’s race should be used; if the race is not known, calculations for all
racial groups to which possible suspects belong should be made.” (Id. at p. 122.)
This precise issue was not before us in People v. Soto, supra, 21 Cal.4th
512, but there we explained why statistics for a range of population groups should
be given. In Soto, the expert calculated the statistical probabilities “in the
databases of DNA collected from representative populations,” including four
Orange County databases—Hispanic, Caucasian, Black, and Vietnamese—as well
as four Federal Bureau of Investigation databases—Southwest Hispanic (Texas),
Southeast Hispanic (Florida), United States Black, and United States Caucasian.
(Id. at pp. 531-532, italics added.) As we explained, the expert’s “use of all these
databases in his calculations reflected an objective of finding the probabilities of a
random match in databases representing all possible perpetrators. Even though
defendant is Hispanic, a possible perpetrator other than defendant could have
belonged to some other ethnic group.” (Id. at p. 532, fn. 27, citing
recommendation 4.1 of 1996 NRC Rep., supra, at p. 122.)
We also disagree with the Pizarro court’s conclusion that if the proponent
of the evidence presents evidence sufficient for the trier of fact to find, by a
preponderance of the evidence, that the perpetrator belonged to a particular
population group, probability evidence as to that group, but no other, is relevant
and admissible. Excluding probability evidence about any but the most likely
group could deprive the jury of potentially crucial evidence. If, for example, the
jury believed it 51 percent likely the perpetrator was Caucasian, providing it with
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the probability only for Caucasians would leave it uninformed regarding the 49
percent possibility the perpetrator was of some other population group. Professor
Kaye explains: “[W]e can never know the perpetrator’s ancestry to a certainty.
Suppose that the victim had lived and identified the man who assaulted her as
‘Asian.’ The cross-racial identification, made under great stress, could be
mistaken. If an Asian defendant wished to argue that the actual rapist might have
been Hispanic, it would assist the jury to know whether the DNA types are
extremely rare among Hispanics. Indeed, in the limit, if no Hispanic had the
requisite genotype, the Hispanic data would refute defendant’s alternative
hypothesis. Conversely, if every Hispanic had the incriminating genotype and
hardly any Asians did, the DNA evidence would be much less probative of the
Asian defendant’s guilt than the Asian-only figure would suggest. To withhold
the Hispanic data on the ground that it is irrelevant because the other evidence in
the case points to an Asian could be a serious mistake.” (Kaye, supra, 3 Law,
Probability & Risk at p. 215.)
If a defendant wanted to argue that the perpetrator might have been a
member of a particular population group for which the odds were more favorable
to the defense, surely it would be relevant and permissible to admit evidence of
those odds. Similarly, the prosecution should be permitted to present evidence of
a representative range of groups.
“Moreover, even if we could know that the perpetrator was, let us say,
Asian, with sufficient certainty to exclude all other possibilities from rational
discourse, the [Pizarro] court’s logic might lead to the paradoxical conclusion that
the frequency data for Asians also is irrelevant. Asian-Americans, after all, are not
a homogeneous group. There are many subgroups—Chinese, Indonesian,
Japanese, and Korean, to name a few—and each subgroup can be parsed still more
finely.” (Kaye, supra, 3 Law, Probability & Risk at p. 215.)
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The Pizarro court and, in turn, defendant, present three objections to giving
the jury the probabilities of a representative range of population groups, none
persuasive. First, the court believed that, “in the absence of sufficient evidence of
the perpetrator’s ethnicity, any particular ethnic frequency is irrelevant.” (Pizarro
II, supra, 110 Cal.App.4th at p. 632.) We disagree for the reasons discussed.
Second, the court believed that “the improper mention of ethnicity unfairly
and unjustifiably encourages the jurors to focus on ethnicity and race—specifically
the ethnicity and race of the defendant, the only suspect before them.” (Pizarro II,
supra, 110 Cal.App.4th at p. 632.) This is a legitimate concern if, as in Pizarro
itself, the expert provides the frequency probability of only the defendant’s own
population group. But here, Criminalist Shea gave the statistics as to a range of
groups. In a concurring opinion, Justice Pollak aptly responded to this objection.
“While we are in complete agreement with the importance of excluding racial
stereotypes and prejudices from the courtroom, this rationale provides no
justification for excluding evidence of objectively established physical differences
among racial populations when such differences are relevant to the issues being
tried. In order to determine the significance of the match between defendant’s
DNA and the crime scene DNA, it is necessary—and relevant—to establish the
likelihood that the crime scene DNA came from another person. There is
agreement within the scientific community that genetic frequencies differ for
different racial or ethnic populations, and that frequency data would be less
accurate without such differentiation. By presenting the data for the major racial
components of the population, when there is no independent evidence of the
perpetrator’s race, the prosecution presents the data necessary for the jury to
evaluate the likelihood that the crime scene DNA came from someone other than
the defendant. Presenting the objective data in the manner in which such
information is collected and analyzed within the scientific community does not
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inject inappropriate racial assumptions or issues into the litigation. To the
contrary, in presenting data for the most numerous racial groups in the population,
the focus is removed from the race of the defendant.”
As Professor Kaye observes, “there is no obvious reason to think that
telling the jury that the incriminating genotypes occur infrequently in every major
racial or ethnic group will encourage the jurors to assume that the crime must have
been committed by a member of the defendant’s racial or ethnic group. In fact,
giving a range of statistics could discourage the jury from jumping to an
unjustified conclusion.” (Kaye, supra, 3 Law, Probability & Risk at p. 216.)
Third, the Pizarro court believed that if the expert testifies to a range of
probabilities, “the jury hears unjustifiably damaging evidence because the various
ethnic frequencies create a range extending from the most conservative and
beneficial to the defendant to the most rare and damning to the defendant.”
(Pizarro II, supra, 110 Cal.App.4th at p. 632.) The court was concerned that the
jury would “likely focus on” the most damaging figure. (Ibid.) “The greater the
disparity between the perpetrator’s true frequency and the range’s most damaging
extreme, the greater the prejudice the defendant will suffer from mention of that
extreme. Without adequate evidence of the perpetrator’s ethnicity, there is no
justification for presenting the most damaging frequency.” (Id. at pp. 632-633,
fns. omitted.) We agree with Justice Pollak’s concurring opinion that no reason
exists to assume the jury would simply focus on the most damaging number. “The
fact of the matter is that when there is no independent evidence of the perpetrator’s
race, the chances that the crime scene DNA matches that of another individual
varies for individuals of different races. There is no reason to underestimate the
jury’s intelligence and to assume that when told the different frequencies the jury
will not appreciate this element of uncertainty and factor it into its assessment of
the weight that should be given to the evidence.”
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We also agree with Professor Kaye that “because more complete—but
unattainable—knowledge [i.e., certainty as to the perpetrator’s race or ethnicity]
would eliminate some alternatives does not make it wrong to contemplate those
alternatives, and there is no inexorable prejudice in providing a range of applicable
figures. [¶] . . . The limitations in the databases can be made clear to the jurors,
who are in a better position to evaluate the possibility that the match is
coincidental if they have a range of the possible frequencies that are consistent
with the facts of the case. As such, the exclusionary rule announced in Pizarro is
baseless and counterproductive.” (Kaye, supra, 3 Law, Probability & Risk at pp.
216-217, fns. omitted.)
Moreover, as Justice Pollak noted, “as the science underlying DNA
comparisons continues to improve, the practical significance of the different racial
frequencies diminishes.” In People v. Barney, supra, 8 Cal.App.4th at page 817,
the court observed that to say that the frequency of the defendant’s DNA pattern
was one in 200 million was “tantamount to saying his pattern is totally unique, and
thus only he could have been the source of the crime scene bloodstains that did not
match those of the victim.” When the odds move into the billions and, as with the
blood on defendant’s pants, even trillions, the force of this observation becomes
ever stronger. In this case, whether the jury focused on the numbers regarding the
two blood samples most favorable to defendant (one in 96 billion and one in 110
trillion) or those most damning to defendant (one in 340 billion and one in 610
trillion) is of little moment. Justice Pollak was correct that “[s]ince there are no
more than 7 billion people on the planet, it is rather unlikely, to say the very least,
that a jury’s evaluation of the significance of the match between defendant’s DNA
and the crime scene DNA would differ whether the jury focuses on 1 in 96 billion,
1 in 340 billion, or any number in between, as the likelihood of a random match
with another person.”
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Pizarro II suggested three alternatives to presenting the jury with a range of
probabilities: “(1) establish that the perpetrator more likely than not belongs to a
particular ethnic population, then present only the frequency in that particular
ethnic population; (2) present only the most conservative frequency, without
mention of ethnicity; or (3) present the frequency in the general, nonethnic
population.” (Pizarro II, supra, 110 Cal.App.4th at p. 633, fn. 85.) For the
reasons already stated, the first alternative’s limiting the evidence to the frequency
of only the most likely population group is counterproductive. Indeed, unless the
perpetrator’s ethnicity is known for certain, the jury should hear a range of
possibilities, not merely the most likely one. The second and third alternatives
may be acceptable choices in an appropriate case, if such evidence exists, but we
see no reason to require one of those alternatives instead of giving the jury a range
of possible frequencies.
Defendant also argues that even if we reject the Pizarro approach, the
evidence here was still improperly admitted because the expert gave the frequency
range for only the three most common population groups, rather than all possible
groups to which the perpetrator could belong. For example, he argues that “the
geographical area near the crime scene in Vacaville included significant numbers
of Asians, Pacific Islanders, and Native Americans,” and thus the range of
frequencies should at least have included these groups. He notes that the 1996
NRC Report’s recommendation 4.1 states that “if the race [of the person who left
the evidence-sample DNA] is not known, calculations for all racial groups to
which possible suspects belong should be made.” (1996 NRC Rep., supra, at p.
122, italics added.) We do not believe the National Research Council meant that
giving a range of probabilities is impermissible unless the range includes literally
all possible population groups. For example, in its comment to recommendation
4.1 in the executive summary, the report suggests that if the race of the perpetrator
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is unknown, the results could be “given for data on whites, blacks, Hispanics, and
east Asians.” (Id. at p. 5.) These four groups would not necessarily include all
possible groups.
Although giving results for all possible population groups would be
permissible, doing so is not required to give relevance to the range of possibilities.
Furthermore, it is not clear whether it is realistically feasible to include all
population groups. In the Soto case, for example, databases existed for separate
subgroups of the Asian population group. The expert witness calculated the
probabilities only for the Vietnamese subgroup. (People v. Soto, supra, 21 Cal.4th
at pp. 531-532 & fn. 25.) It is not clear whether the expert could feasibly have
provided information about every Asian subgroup or about Asians as a whole, not
to mention all other groups or subgroups in the general population. In this case,
Criminalist Shea provided information regarding the three most numerous
population groups. This made her testimony relevant and admissible.
Of course, defendant was entitled to cross-examine the witness regarding
other possible population groups, as he did in this case. When he did, the witness
testified that the frequency of other population groups would be comparably small.
Moreover, if defendant believed the perpetrator could have been a member of
another population group or groups for which the frequency figures would be
more favorable to him, he was entitled to cross-examine the witness or present his
own evidence in that regard. The fact that defendants might proceed in either
fashion does not make the evidence the prosecution presented irrelevant.
III. CONCLUSION
We agree with Justice Pollak’s summation: “Thus, there is no cogent
reason to preclude testimony of a range of ethnic or racial genetic profile
frequencies when the race of the perpetrator is unknown, so long as the data is not
presented in a manner that assumes that the race of the perpetrator is the same as
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the race of the defendant. Since the testimony in the present case made no such
assumptions, it was relevant, nonprejudicial, and properly received . . . .” (Fn.
omitted.)
Accordingly, we affirm the judgment of the Court of Appeal. We approve
Pizarro I, supra, 10 Cal.App.4th 57, and Pizarro II, supra, 110 Cal.App.4th 530,
to the extent they condemn admitting evidence of the odds solely regarding the
defendant’s population group. But we disapprove of People v. Pizarro, supra, 110
Cal.App.4th 530, to the extent it concludes that evidence regarding any particular
population group is inadmissible absent sufficient independent evidence that the
perpetrator was a member of that group.
CHIN,
J.
WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
HAERLE, J. ∗
∗
Associate Justice, Court of Appeal, First Appellate District, Division Two,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Wilson
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 124 Cal.App.4th 38
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S130157
Date Filed: July 6, 2006
__________________________________________________________________________________

Court:

Superior
County: Solano
Judge: Luis M. Villarreal

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Attorneys for Appellant:

Victor J. Morse, under appointment by the Supreme Court, for Defendant and Appellant.

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Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler,
Assistant Attorney General, Stan M. Helfman, Enid A. Camps and Sharon G. Birenbaum, Deputy
Attorneys General, for Plaintiff and Respondent.

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

Victor J. Morse
3145 Geary Boulevard, PMB #232
San Francisco, CA 94118
(415) 387-5828

Enid A. Camps
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5976

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Opinion Information

Date:	Docket Number:
Thu, 07/06/2006	S130157

Disposition
Jul 6 2006	Opinion: Affirmed

Dockets
Dec 23 2004	Petition for review filed   By counsel for appellant {William Curtis Wilson}.
Dec 23 2004	Record requested
Jan 4 2005	Received Court of Appeal record   file jacket/briefs/sealed envelope/two accordian files
Feb 16 2005	Petition for review granted (criminal case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Mar 7 2005	Counsel appointment order filed   Victor J. Morse is hereby appointed to represent appellant on his appeal now pending in this court. Appellant's brief on the merits must be served and filed within 30 days.
Apr 4 2005	Request for extension of time filed   Appellant requesting to May 6, 2005 to file opening brief on the merits.
Apr 7 2005	Extension of time granted   to and including May 6, 2005 for appellant to file opening brief on the merits.
May 5 2005	Request for extension of time filed   Appellant requesting to June 5, 2005 to file opening brief on the merits.
May 11 2005	Extension of time granted   to and including June 6, 2005 for appellant to file opening brief on the merits
Jun 2 2005	Request for extension of time filed   Appellant requesting to July 6, 2005 to file opening brief on the merits.
Jun 7 2005	Extension of time granted   to and including July 6, 2005 for appellant to file the opening brief on the merits. No further extensions of time are contemplated.
Jul 6 2005	Opening brief on the merits filed   by counsel for appellant (William Curtis Wilson).
Jul 20 2005	Compensation awarded counsel   Atty Morse
Aug 1 2005	Request for extension of time filed   by counsel for respondent: requesting to September 6, 2005, to file answer brief on the merits. (to court for permission)
Aug 4 2005	Extension 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 6, 2005.
Aug 26 2005	Request for extension of time filed   by counsel for respondent: requesting to 10/6/05 to file answer brief on the merits. (to court for permission)
Aug 30 2005	Extension 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 October 6, 2005.
Oct 6 2005	Request for extension of time filed   by counsel for respondent: requesting to November 7, 2005, to file answer brief on the merits. (to court for permission to file)
Oct 11 2005	Extension 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 November 7, 2005. No further extensions of time are contemplated. The case should be reassigned to another attorney if necessary to meet this filing date.
Nov 7 2005	Request for extension of time filed   Request for extension of time by respondent to and including November 17 to file answer brief on the merits (to court for permission).
Nov 14 2005	Extension 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 November 17, 2005. No further extensions will be granted.
Nov 17 2005	Application to file over-length brief filed   By counsel for respondent (received answer brief on the merits)
Nov 18 2005	Answer brief on the merits filed   With Permission.
Dec 8 2005	Reply brief filed (case fully briefed)   William Curtis Wilson, Appellant By Victor J. Morse, Counsel
Jan 26 2006	Received:   letter dated January 25, 2006 from counsel for appellant re: Justice Corrigan's participation in the decision of the case in the Court of Appeal.
Apr 4 2006	Case ordered on calendar   Tuesday, May 2, 2006, at 9:00 a.m., in San Francisco
May 2 2006	Cause argued and submitted
Jul 6 2006	Opinion filed: Judgment affirmed in full   We approve Pizarro I, supra, 10 Cal.App.4th 57, and Pizarro II, supra, 110 Cal.App.4th 530, to the extent they condemn admitting evidence of the odds solely regarding the defendant's population group. But we disapprove of People v. Pizarro, supra, 110 Cal.App.4th 530, to the extent it concludes that evidence regarding any particular population group is inadmissible absent sufficient independent evidence that the perpetrator was a member of that group. Majority Opinion by Chin, J. ----- Joined by George, CJ., Kennard, Baxter, Werdegar, Moreno, JJ., and Haerle, J., Asscoaite Justice, Court of Appeal, First Appellate, Division Two.
Aug 15 2006	Remittitur issued (criminal case)
Aug 30 2006	Compensation awarded counsel   Atty Morse
Oct 10 2006	Received:   Receipt for Remittitur

Briefs
Jul 6 2005	Opening brief on the merits filed
Nov 18 2005	Answer brief on the merits filed
Dec 8 2005	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website