Stanford Law School - Robert Crown Law Library

Filed 12/3/12




IN THE SUPREME COURT OF CALIFORNIA




S189275

In re WILLIAM RICHARDS

Ct.App. 4/2 E049135

on Habeas Corpus.

San Bernardino County

Super. Ct. No. SWHSS700444



At petitioner‘s 1997 trial for the murder of his wife, the evidence against

him was circumstantial. One of many pieces of evidence linking petitioner to the

crime was a postmortem photograph of the victim‘s hand, depicting an indistinct,

crescent-shaped lesion. The prosecution‘s dental expert stated his opinion that the

lesion was a human bite mark. And after comparing the bite mark to the

distinctive arrangement of petitioner‘s lower teeth, the dental expert stated that

petitioner‘s unusual dentition was consistent with the shape of the mark depicted

in the photograph, and that he could not exclude petitioner‘s teeth as a possible

source of the mark. According to the expert, petitioner‘s unusual dentition

occurred in only 2 percent or less of the general population. The jury found

petitioner guilty as charged. The Court of Appeal upheld the conviction.

In 2007, petitioner sought habeas corpus relief in the San Bernardino

County Superior Court, claiming that new evidence established his innocence, and

that his murder conviction was based on false evidence given at trial by the

prosecution‘s dental expert. In a declaration supporting the petition, that expert

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stated that his trial testimony regarding the statistical frequency of petitioner‘s

dentition was not based on scientific data. Moreover, after examining photographs

depicting other lesions on the victim‘s body, the dental expert said he was no

longer certain that the lesion on the victim‘s hand was a bite mark.

Supporting declarations by other dental experts agreed, based on newly

available computer technology, that the prosecution‘s expert had testified

inaccurately at trial.

The superior court issued an order to show cause. After an evidentiary

hearing, the court granted habeas corpus relief; in the court‘s view, petitioner had

presented new evidence pointing unerringly to his innocence. The Court of

Appeal disagreed. We granted petitioner‘s request for review.

The most significant issue here is whether a conviction is based on ―false

evidence‖ (Pen. Code, § 1473, subd. (b)) when it depends in part on the opinion of

an expert witness, and posttrial advances in technology have raised doubts about

the expert‘s trial testimony without conclusively proving that testimony to be

untrue. We conclude that in such circumstances the expert‘s trial testimony has

not been shown to be ―false evidence,‖ but that the information garnered from the

technological advances may be presented as newly discovered evidence in support

of habeas corpus relief. Habeas corpus relief should be granted only if the new

evidence ― ‗point[s] unerringly to innocence or reduced culpability‘ ‖ (In re Clark

(1993) 5 Cal.4th 750, 766), a showing that petitioner here has not made.

I

A. Murder of Pamela Richards

Petitioner and his wife, Pamela, lived in a camper parked on their property

in a remote area of San Bernardino County. They used a generator, kept in a small

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shed, for electricity. To access their home, one had to ascend a steep sand and

gravel driveway. The couple kept several dogs on the property to ward off

uninvited intruders; they also had several guns, which Pamela knew how to use.

At approximately 11:55 p.m. on August 10, 1993, Eugene Price telephoned

the couple‘s camper in response to a message Pamela had left on his answering

machine around 7:00 or 7:30 that evening. Price had a sexual relationship with

Pamela, who was planning to move with Price to an apartment in Ventura County.

Petitioner answered the telephone call. He sounded stressed and agitated. When

Price asked for Pamela, petitioner said she was dead. Price told petitioner to call

911. At 11:58 p.m., petitioner did so.

Because of the remote location of the property, San Bernardino Sheriff‘s

Deputy Mark Nourse did not arrive until shortly after 12:30 a.m. He testified that

the property was ―pitch black,‖ there were no lights, and there was no moonlight.

Petitioner, who was dressed in blue jeans and a blue work shirt, gave this story:

He had left work at 11:00 p.m. and arrived at the camper just before midnight.

The generator was off when he arrived. The property was dark. The battery in the

camper had lost its charge. He did not turn on the generator, and he had no light.

He found his wife lying on the ground outside the camper. It was hard for him to

see her body in the dark, but he realized she was dead when he rolled her over. He

immediately called 911 and then cradled her head in his arms.

Deputy Nourse also said that although it was an overcast night and very

dark, and although only half an hour had transpired between petitioner‘s reported

arrival at his property and Nourse‘s arrival there, petitioner was able to take the

deputy on a detailed tour of the crime scene. Petitioner knew that Pamela‘s pants

were lying next to the generator, and that they had not come off easily, telling the

deputy ―trust me on this.‖ He knew that her underwear was inside the camper. He

knew that her blood was inside the camper on the pillow. He knew that there was

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―blood on rocks up against the hill‖ (referring to the rough, upward-sloping terrain

to the southwest of the crime scene). He knew that a bloodstained paving stone

had been thrown ―over the side of the hill‖ (referring to the rough, downward-

sloping terrain to the north of the crime scene). He theorized about what Pamela

was doing when her murderer arrived, where the murderer confronted Pamela, and

what she did in her defense. And he surmised that the murderer had used a

cinderblock to kill Pamela. He also told the deputy: ―[A]ll the evidence that

relates to this case I already touched and moved trying to figure out how this

whole thing happened.‖

Deputy Nourse described petitioner‘s demeanor as ―very calm, cool, [and]

collected,‖ but occasionally petitioner would fall to his knees crying, after which

he would get back up and continue talking. To the deputy, it seemed as if

petitioner was speaking ―like he had rehearsed or was reading from a script.‖

Petitioner‘s dogs barked, growled, and snarled at Deputy Nourse. Petitioner

remarked that the dogs had failed to protect his wife from her murderer. He did

not report anything missing from the premises.

Deputy Nourse checked Pamela‘s body. It was neither warm nor cold. Her

arm was pliable. Her blood was still wet, bright red, and in a puddle; it had not

coagulated or soaked into the sandy soil. She appeared to have just died.

Sheriff‘s investigators secured the crime scene. In the morning, they

conducted a thorough investigation. Pamela was lying on her back on the ground

outside the camper, covered with a sleeping bag. She was naked from the waist

down, except for her socks. Her head was crushed, an eye hanging out. A bloody

cinderblock was lying near her head, and blood spatters were on the ground.

Petitioner had scattered bloodstains on his pants and shoes. From a study of all the

footprints and tire tracks that were discernible in the soft sand and gravel, it did

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not appear that anyone had been present except petitioner, Pamela, and the

investigators.

Investigators found a note in Pamela‘s purse in which petitioner proposed a

division of their assets and personal property. Petitioner and his wife had been

having financial and marital difficulties, and both had sexual relationships outside

the marriage.

DNA testing established that the bloodstains on petitioner‘s pants and shoes

belonged to Pamela. A criminalist determined that the stains were from blood

spatter, not from drips or contact, indicating that the blood hit petitioner‘s pants

and shoes when Pamela‘s skull was smashed.

An autopsy determined that Pamela had been strangled. The strangling was

sufficient by itself to cause her death. In addition, her skull was smashed. That

injury was also sufficient to cause her death. There was no evidence of sexual

assault.

The pathologist who performed the autopsy severed some of Pamela‘s

fingertips from her body for testing. Daniel Gregonis, a criminalist, later

examined the severed fingertips under a stereomicroscope and noticed blue cotton

fibers wedged deep in a crack of a broken fingernail. A broken fragment

apparently torn from the same fingernail was found on the ground at the crime

scene, suggesting that the fingernail broke during Pamela‘s struggle with her

assailant. The criminalist examined the blue cotton shirt petitioner wore on the

night of the murder, and he concluded that the blue shirt fibers were

indistinguishable from the fibers caught in the crack in Pamela‘s broken fingernail.

The same fibers were not, however, mentioned in the report of Craig Ogino,

another criminalist who testified for the prosecution at trial and who may have

examined the same fingertips.

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The time clock at petitioner‘s work indicated that he had left there at 11:03

p.m. on the night of the murder. A few weeks after Pamela‘s murder, a sheriff‘s

homicide investigator went to petitioner‘s place of employment. The investigator

left petitioner‘s workplace at 11:03 p.m., walked to his car, and then drove at the

speed of traffic (60-70 miles per hour). He arrived at petitioner‘s residence at

11:47 p.m. If on the night of the murder petitioner also arrived home at 11:47

p.m., then he had been at home for 11 minutes when he called 911.

A homicide detective interviewed petitioner on several occasions after

Pamela‘s murder. Petitioner‘s statements were generally consistent with what he

had earlier told Deputy Nourse, who responded to petitioner‘s 911 call.

B. Petitioner’s Trial and Conviction

Petitioner was charged with murder. (Pen. Code, § 187.) His first trial

ended in a mistrial after the jury was unable to reach a verdict. His second trial

was aborted before a jury was selected, when the trial court recused itself. His

third trial, like his first, ended in a mistrial after the jury could not reach a verdict.

At petitioner‘s fourth trial, the prosecution presented the evidence described

in part I.A., ante. In addition, the prosecution for the first time presented expert

testimony by a forensic dentist, Dr. Norman D. Sperber. Dr. Sperber described a

unique feature of petitioner‘s lower teeth: The lower right canine tooth was out of

alignment with the other teeth and had not emerged fully from the gum.

Dr. Sperber testified, based solely on his experience as a practicing dentist, and

expressly without the benefit of any scientific studies, that ―it might be one or two

or less‖ out of a hundred people who would have petitioner‘s dental irregularity.

After visually comparing a photograph of an indistinct crescent-shaped lesion on

murder victim Pamela‘s hand to a model of petitioner‘s lower teeth, Dr. Sperber

stated his opinion that the lesion was a human bite mark, and that petitioner‘s

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unusual dentition was ―consistent with‖ the bite mark. In the photograph, the

lesion appears only as a reddening and bruising of the surface tissues; Pamela‘s

skin is not broken, and it is difficult to identify individual marks that might be

teeth marks.

The defense at trial presented testimony from several witnesses who said

that both petitioner and Pamela seemed ―fine‖ and ―normal‖ on the day of the

murder, although Pamela‘s brother testified that Pamela had told him she and

petitioner had been arguing.

In addition, the defense presented evidence that Pamela had already been

dead for some time when petitioner arrived home on the night of the murder.

Dr. Griffith Thomas, a forensic pathologist, testified about the factors from which

the time of death can be determined. In his view, the time of Pamela‘s death was

uncertain, but many of her contusions occurred several hours before she died.

In regard to the supposed bite mark on Pamela‘s hand, Dr. Gregory S.

Golden, an expert in forensic dentistry, testified for the defense that in a brief

review of 15 ―study models‖ of teeth in his office, he found five models that were

―consistent with‖ the mark. In his view, the bite-mark evidence was inconclusive

and should be disregarded, in part because of the angular distortion in the

photograph of the mark. On cross-examination, Dr. Golden agreed with

Dr. Sperber‘s estimate that petitioner‘s displaced canine tooth occurred in only

about 2 percent of the general population.

Finally, defense witness Dean M. Gialamas, a senior criminalist with the

Los Angeles County Sheriff‘s Department, testified that the scattered bloodstains

on the clothes petitioner was wearing on the night of Pamela‘s murder were

contact stains, not spatter stains, and they were more consistent with petitioner‘s

story that he cradled Pamela‘s dead body than with the prosecution‘s theory that

petitioner was the killer.

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The jury found petitioner guilty of first degree murder of his wife, Pamela.

(Pen. Code, § 187, subd. (a).) The trial court sentenced petitioner to 25 years to

life in state prison. The judgment was affirmed by the Court of Appeal.

C. Habeas Corpus Proceeding

In 2007, petitioner sought habeas corpus relief in the San Bernardino

County Superior Court, asserting that his 1997 murder conviction was based on

false evidence, and that new evidence unerringly established his innocence.

Among the voluminous exhibits supporting the petition was a declaration from

Forensic Dentist Sperber, discussing his statement at trial that only 1 or 2 percent

of the population had petitioner‘s dental irregularity. Dr. Sperber‘s declaration

stated: ―These percentages were based on my own experience and were not

scientifically accurate.‖ Concerning the lesion on murder victim Pamela‘s hand,

the declaration added: ―With the benefit of all of the photographs [of the crime

scene and Pamela‘s injuries], and with my added experience, I would not now

testify as I did in 1997,‖ and ―I cannot now say with certainty that the injury on the

victim‘s hand is a human bite mark injury.‖

Also supporting the petition were declarations and reports by other experts

in forensic dentistry. The declaration of Dr. Golden, who had testified for the

defense at trial, said that he had ―enlarged the image [of murder victim Pamela‘s

hand lesion] to life-size,‖ and that after comparing the enlarged image to

petitioner‘s teeth, he ―would tend to exclude [petitioner] as the suspected biter.‖

The declaration of Dr. Charles M. Bowers described the process by which he and

Dr. Raymond J. Johansen had removed angular distortion from the photograph of

Pamela‘s hand lesion, thereby permitting a more accurate comparison between the

hand lesion and petitioner‘s lower teeth. According to Dr. Bowers, ―[t]he new

scientific methods demonstrably contradict the conclusion at trial that [petitioner]

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could not be ruled out as a suspected biter.‖ Dr. Bowers also criticized the

methodology used by Dr. Sperber at petitioner‘s trial. In an earlier written report,

Dr. Bowers said that there is ―significant doubt that the hand injury is even a

bitemark.‖

The superior court issued an order to show cause and held an evidentiary

hearing on the habeas corpus petition. The court heard testimony from

Dr. Sperber (the prosecution‘s forensic dentistry witness at trial) and from the

other dental experts who had submitted declarations and reports in support of

habeas corpus relief. Dr. Sperber discussed the points he had made in his posttrial

declaration. He also described the angular distortion in the photograph of the

lesion on Pamela‘s hand, and he examined photographs depicting other lesions on

Pamela‘s body. Referring to the photograph of the lesion on Pamela‘s hand, he

said: ―I don‘t know for sure that . . . that photograph depicts a bite mark.‖

Dr. Sperber added: ―My opinion today is that [petitioner‘s] teeth . . . are not

consistent with the lesion on the hand.‖ Dr. Golden likewise confirmed the points

he had made in his declaration. He also described the availability of new

computer technology allowing him to remove angular distortion from

photographs. He concluded that the lesion on Pamela‘s hand might have been

from a dog bite or some other source; in any case, he ―would tend to rule out

Mr. Richards . . . as the suspected biter.‖

Drs. Bowers and Johansen testified in detail about the process by which

they digitally altered the photograph of Pamela‘s hand to remove angular

distortion. Drs. Bowers and Johansen, experts in this process, have published

articles and a book describing the use of this process in forensic dentistry. The

technique was first used in 1996 or 1997 by a single dentist in Canada, after which

Drs. Bowers and Johansen further developed the technique, which has since

become accepted in the field of forensic dentistry.

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Dr. Johansen said that he removed the angular distortion from the

photograph of Pamela‘s hand and then compared the corrected photograph to

―overlays‖ depicting petitioner‘s lower and upper teeth. He also examined

photographs of wire-mesh fencing material found on the ground near Pamela‘s

body. He concluded that petitioner‘s lower teeth did not match the lesion on

Pamela‘s hand. The upper teeth matched the lesion in some places, but not others.

Dr. Johansen could not exclude petitioner‘s teeth as a possible source of the lesion,

but in his opinion it was just as likely that the indistinct lesion was caused by the

fencing material as it was by petitioner‘s teeth. But Dr. Johansen conceded on

cross-examination that he had removed angular distortion from the same

photograph in 2000, concluding at that time that the lesion was a human bite mark

that was consistent with petitioner‘s teeth.

Dr. Bowers testified that he likewise removed the angular distortion from

the photograph of murder victim Pamela‘s hand and compared the corrected

photograph to an ―overlay‖ of petitioner‘s lower teeth. He found no match. After

examining photographs of other lesions on Pamela‘s body, Dr. Bowers doubted

whether the hand lesion was a human bite mark.

Other evidence presented in support of the habeas corpus petition indicated

that the blue fibers found embedded in a crack of Pamela‘s broken fingernail

might not have been present at the time of the autopsy. No blue fibers were

visible in a still photograph that was taken during the autopsy, nor were they

visible when the autopsy photograph was digitally altered to increase color

saturation. By contrast, the blue fibers were visible in a still photograph taken

from a video recording of the postautopsy testing of Pamela‘s fingertips.

In addition, a two-centimeter-long hair was found under one of Pamela‘s

long artificial fingernails. A new type of DNA testing revealed that this hair did

not come from Pamela or from petitioner, and the district attorney did not dispute

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those DNA test results. Patricia Zajac, a professor of criminal justice at California

State University, East Bay and a criminalist, reviewed the laboratory notes and

other records in the case. She testified that in her opinion the hair was not

―historical,‖ by which she meant that in her view its placement was somehow

related to the violence that resulted in Pamela‘s death. Professor Zajac also

testified that although the hair had a mature root and had fallen out naturally (or

was ready to do so), that fact did not undermine her conclusion that the hair under

Pamela‘s fingernail was related to the crime.

Finally, a new type of DNA testing indicated that the bloodstained paving

stone that — along with a cinderblock — may have been used to smash Pamela‘s

skull had trace DNA from one or more male persons, none of whom was

petitioner. Pamela‘s DNA, however, was the primary DNA on the paving stone.

The ratio of the male DNA to Pamela‘s DNA was 1 to 10 (in one location) and 1

to 6 (in another location). Again, the district attorney did not dispute those DNA

test results. In addition, the male DNA was located on the paving stone in a place

near where Daniel Gregonis, a criminalist in the sheriff‘s department, had earlier

expected he might find the DNA of the murderer.

The district attorney called Gregonis as a witness. Gregonis and another

criminalist, Craig Ogino, had examined ―scrapings‖ from Pamela‘s fingernails.

These scrapings included a dark animal hair and also the two-centimeter-long

human hair that, according to petitioner‘s DNA testing, did not come from either

Pamela or from petitioner. Because of the length of Pamela‘s artificial fingernails,

Gregonis was of the view that the human hair might have been lodged under

Pamela‘s fingernail for a long time without being noticed, and he therefore

concluded that the hair might not have been related to the crime. The parties

stipulated that criminalist Ogino would testify along similar lines.

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Gregonis also discussed the male DNA found on the bloodstained paving

stone that might have been used to kill Pamela. He said that the male DNA was

present in an amount that was consistent with contamination that could have

occurred in the courtroom, although it also could have been already present on the

stone when the stone was stained with Pamela‘s blood.

The superior court granted habeas corpus relief, concluding that the new

evidence pointed unerringly to petitioner‘s innocence. In reaching this conclusion,

however, the superior court made very few specific findings of fact. The court

ordered that petitioner be remanded for a new trial, but it stayed its decision for 15

court days to allow the district attorney to appeal.

To preserve the status quo, the Court of Appeal stayed proceedings to retry

petitioner. After briefing and oral argument, the Court of Appeal vacated the

superior court‘s order granting the petition for a writ of habeas corpus. With

regard to petitioner‘s false evidence claim (challenging the trial testimony of

Dr. Sperber regarding the alleged bite mark), the Court of Appeal held that a

habeas corpus petitioner does not establish false evidence under Penal Code

section 1473‘s subdivision (b) merely by presenting new expert testimony on how

to interpret the evidence offered at the trial. Accordingly, the Court of Appeal

concluded that all petitioner‘s claims were, in effect, new evidence claims, and

that the unerring innocence standard applicable to such claims therefore applied to

all claims. The court reviewed the evidence that petitioner had offered in support

of habeas corpus relief and concluded that petitioner‘s evidence failed to establish

unerring innocence.

We granted petitioner‘s petition for review. His claims are addressed

below.

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II

Penal Code section 1473, subdivision (b) provides in relevant part: ―A writ

of habeas corpus may be prosecuted for, but not limited to, the following

reasons: [¶] (1) False evidence that is substantially material or probative on the

issue of guilt or punishment was introduced against a person at any hearing or trial

relating to his incarceration . . . .‖ (Italics added.) In addition, this court‘s

decisions hold that habeas corpus relief is appropriate if the petitioner presents

new evidence that unerringly establishes innocence. With regard to new evidence,

we have said: ―It is not sufficient that the evidence might have weakened the

prosecution case or presented a more difficult question for the judge or jury.

[Citations.] ‗[A] criminal judgment may be collaterally attacked on the basis of

―newly discovered‖ evidence only if the ―new‖ evidence casts fundamental doubt

on the accuracy and reliability of the proceedings. At the guilt phase, such

evidence, if credited, must undermine the entire prosecution case and point

unerringly to innocence or reduced culpability.‘ [Citation.]‖ (In re Clark, supra,

5 Cal.4th at p. 766, italics added; see also In re Lawley (2008) 42 Cal.4th 1231,

1238-1241.) Here, petitioner asserts both theories of relief; that is, he asserts that

his conviction was based on false evidence, and that new evidence unerringly

establishes his innocence.

Our standard of review is de novo with respect to questions of law and the

application of the law to the facts. We accept as final the superior court‘s

resolution of pure questions of fact if they are supported by substantial evidence.

(In re Collins (2001) 86 Cal.App.4th 1176, 1181.) Here, the superior court made

very few specific findings of fact regarding the evidence, and none that is

significant to the main part of our analysis. Accordingly, our review here is de

novo.

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A. False Evidence

1. Legal principles

As noted, Penal Code section 1473‘s subdivision (b) provides for habeas

corpus relief if ―[f]alse evidence that is substantially material or probative on the

issue of guilt or punishment was introduced against a person at any hearing or trial

relating to his incarceration . . . .‖ Before 1975, it was much more difficult for a

convict to obtain habeas corpus relief on false evidence grounds, requiring proof

that the prosecution knowingly relied on perjured testimony. As explained by the

Court of Appeal in In re Wright (1978) 78 Cal.App.3d 788 (Wright): ―Prior to the

1975 amendment to Penal Code section 1473, the rule was clear that to obtain

habeas corpus relief on the ground of perjured testimony, the petitioner was

required to establish by a preponderance of the evidence: (1) that perjured

testimony was adduced at his trial, (2) that this was known to a representative of

the state, and (3) that the perjured testimony may have affected the outcome of the

trial. (In re Imbler [(1963)] 60 Cal.2d [554,] 560; Napue v. Illinois [(1959)] 360

U.S. 264, 269, 272; see Witkin, Cal. Criminal Procedure (1975 supp.) § 804,

p. 866.)‖ (Wright, at p. 807.)

The Court of Appeal in Wright, supra, 78 Cal.App.3d 788, related the key

changes that the 1975 amendment had effected: ―Under Penal Code section 1473,

subdivision (b)(1) . . . , it is not required that perjury be proved. A showing of

‗false evidence‘ is sufficient. Additionally, it is no longer necessary to show a

representative of the state knew the testimony was false. (Pen. Code, § 1473,

subd. (c).)‖ (Wright, at p. 809, fn. 5.) Wright relied on and quoted a committee

analysis of the Assembly bill that led to the 1975 amendment to Penal Code

section 1473: ― ‗The key distinction between [prior case law] . . . , on the one

hand, and this bill, on the other, is that the former all involve prosecutorial

misconduct, while, under the bill, the [proposed prejudice] standard would apply

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whether or not use of false evidence by the prosecution had been knowing,

negligent, inadvertent, or totally without fault.‘ ‖ (Wright, at p. 810, fn. 6, original

italics.)

The Court of Appeal in Wright, supra, 78 Cal.App.3d 788, also noted an

important way in which the law remained unchanged after the 1975 amendment:

―[T]he requirement under the preexisting law that the petitioner show the false

evidence may have affected the outcome of his trial was not eliminated or changed

by the 1975 amendment to Penal Code section 1473 and is still required for relief

under the amended statute: ‗[f]alse evidence that is substantially material or

probative on the issue of guilt or punishment‘ means false evidence of such

significance that it may have affected the outcome of the trial . . . .‖ (Wright, at

pp. 808-809, italics added.) Wright further explained that this required showing of

prejudice was the same as the ―reasonably probable‖ test (see People v. Watson

(1956) 46 Cal.2d 818, 836) that applies in other instances of state law error.

(Wright, at p. 812.) As we said in In re Roberts (2003) 29 Cal.4th 726, 742:

―False evidence is ‗substantially material or probative‘ . . . ‗if there is a

―reasonable probability‖ that, had it not been introduced, the result would have

been different. [Citation.]‘ [Citation.]‖

Thus, under the present version of section 1473 it does not matter why

evidence is false or whether any party to the proceeding knew it was false. So

long as some piece of evidence at trial was actually false, and so long as it is

reasonably probable that without that evidence the verdict would have been

different, habeas corpus relief is appropriate.

We summarized those principles in In re Hall (1981) 30 Cal.3d 408, at

page 424: ―The new law requires only that the evidence be ‗false‘ and

‗substantially material or probative on the issue of guilt or punishment‘ ([Pen.

Code, § 1473], subd. (b)(1)); there is no longer any obligation to show that the

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testimony was perjured or that the prosecutor or his agents were aware of the

impropriety. (In re Wright, supra, 78 Cal.App.3d 788, 807-808.) [¶] In this case,

the trial testimony of [two key witnesses] identifying petitioner as the killer

apparently was false, albeit unintentionally so. As it was virtually the only

damning evidence against petitioner, that testimony clearly satisfies the statute‘s

test of materiality. Accordingly, . . . we hold that false evidence was introduced

against petitioner, and that issuance of the writ is justified on that ground . . . .‖

(Italics added.)

2. Expert opinion testimony

Here, we consider how to apply the above discussed principles in the

context of an expert witness‘s opinion testimony. Expert opinion is qualitatively

different from eyewitness testimony and from physical evidence. Expert

witnesses are by definition witnesses with ―special knowledge, skill, experience,

training, or education‖ in a particular field (Evid. Code, § 720), and they testify ―in

the form of an opinion‖ (id., § 801, italics added). The word ―opinion‖ implies a

subjective component to expert testimony. Moreover, expert witnesses may only

testify about matters that are ―beyond common experience‖ (id., § 801, subd. (a)),

and such witnesses very often testify regarding matters that lie at the frontier of

human knowledge about a given subject. It is not surprising that in the latter

circumstance, an expert‘s opinion may rely to some extent on evolving theories,

assumptions, or methods. Moreover, technical limitations may inhibit an expert

witness‘s analysis of the available data. Thus, it is conceivable — even reasonable

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— that an expert witness‘s opinion may change over time without that change

implying any lack of integrity on the expert‘s part.1

For example, research and scientific breakthroughs may have altered the

generally accepted hypotheses of the expert‘s field, or new technologies may have

opened up more accurate methods for resolving disputed questions. In either

situation, it may be that expert witness opinion testimony in a criminal trial is later

proved to be objectively untrue. If, with hindsight, a critical component of the

prosecution‘s case is objectively untrue, then the validity of any resulting guilt

finding is called into question. It does not matter why the critical evidence was

untrue; regardless of why it was untrue, the fact that it was untrue, coupled with

the fact that it affected the outcome of the trial, casts a doubt over the verdict of

guilt. In such circumstances, the law places the importance of integrity in criminal

trials above the public‘s interest in the finality of the judgment. (In re Hall, supra,

30 Cal.3d at p. 424.)

Given, on the one hand, the subjective component of expert opinion

testimony, and, on the other hand, the possibility that advances in science and

technology might prove an earlier-held opinion to be objectively untrue, it is

critical to define what precisely is meant by ―false‖ when the false evidence

standard of Penal Code section 1473 is applied to expert opinion testimony.

When an expert witness gives an opinion at trial and later simply has

second thoughts about the matter, without any significant advance having occurred

in the witness‘s field of expertise or in the available technology, it would not be

accurate to say that the witness‘s opinion at trial was false. Rather, in that


1

Our discussion here presumes good faith expert opinion testimony. Perjury

is always ―[f]alse evidence‖ for purposes of Penal Code section 1473, subdivision
(b).

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situation there would be no reason to value the later opinion over the earlier.

Therefore, one does not establish false evidence merely by presenting evidence

that an expert witness has recanted the opinion testimony given at trial. Likewise,

when new expert opinion testimony is offered that criticizes or casts doubt on

opinion testimony given at trial, one has not necessarily established that the

opinion at trial was false. Rather, in that situation one has merely demonstrated

the subjective component of expert opinion testimony.

When, however, there has been a generally accepted and relevant advance

in the witness‘s field of expertise, or when a widely accepted new technology has

allowed experts to reach an objectively more accurate conclusion, a strong reason

may exist for valuing a later opinion over an earlier opinion. If, and only if, a

preponderance of the evidence shows that an expert opinion stated at trial was

objectively untrue, the false evidence standard applies.2 In that narrow


2

The dissent asserts that a habeas corpus petitioner need not show that the

expert‘s ultimate conclusion was untrue; rather, the petitioner need only
undermine the analytical basis of that conclusion. (Dis. opn. of Liu, J., post, pp. 3-
9.) Thus, according to the dissent, petitioner here need not show that
Dr. Sperber‘s conclusion was wrong regarding the source of the lesion on murder
victim Pamela‘s hand; rather, petitioner need only show that Dr. Sperber relied on
a false assumption to reach that conclusion. (Ibid.)


The dissent‘s interpretation of Penal Code section 1473‘s subdivision (b)

would permit habeas corpus relief even when the petitioner’s own experts at the
habeas corpus proceeding fully agreed with the conclusion of the prosecution’s
trial expert. If, for example, petitioner‘s experts agreed with Dr. Sperber that the
lesion at issue here was a bite mark, and also that it was consistent with
petitioner‘s unusual dentition, but those experts had a different scientific basis for
reaching their conclusion, then the dissent would apparently permit habeas corpus
relief on the ground that Dr. Sperber‘s scientific basis was subject to criticism,
notwithstanding petitioner‘s experts‘ confirmation of Dr. Sperber‘s conclusion.
We doubt that the Legislature had that in mind when it used the term ―false
evidence‖ in Penal Code section 1473‘s subdivision (b).

18

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circumstance, if it is reasonably probable that the invalid opinion given at trial

affected the verdict, then habeas corpus relief is appropriate.

With these principles in mind, we turn to the facts surrounding the issue

here.

3. Dr. Sperber’s opinion at trial

In regard to his false evidence claim, petitioner focuses on Dr. Sperber‘s expert

opinion given at trial that the arrangement of petitioner‘s lower teeth occurs in only 1

or 2 percent of the general population, and that his lower teeth may have been the

source of the lesion on Pamela‘s hand.3 At the evidentiary hearing in the superior

court, petitioner presented the testimony of Dr. Sperber himself and three other

experts in forensic dentistry. Discussing his trial testimony that ―it might be one or

two or less‖ out of a hundred people who would have petitioner‘s specific dental

irregularity, Dr. Sperber said that he had not based his testimony on any scientific

studies, and that without such studies, he should not have testified to statistical

percentages. With regard to the lesion on Pamela‘s hand, Dr. Sperber and three other

experts cast doubt on Dr. Sperber‘s trial testimony. These experts were uncertain that

the lesion was a human bite mark; if it was, they all — including Dr. Sperber —

agreed that petitioner‘s teeth did not definitively match the lesion.

Three of these experts — Drs. Golden, Bowers, and Johansen — relied on

the availability of new technology in reaching their opinions. Using a computer

program, these experts were able to remove angular distortion from the


3

Petitioner also asserts that the blue fibers that prosecution criminalist

Gregonis found jammed into a crack in murder victim Pamela‘s fingernail
constituted false evidence, insinuating that they were planted there by Gregonis.
The superior court, however, made a specific factual finding — at the close of the
evidentiary hearing on petitioner‘s habeas corpus claims — rejecting this false
evidence claim, and that finding has ample support in the record before us.

19

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photograph of the lesion on murder victim Pamela‘s hand, thus artificially

generating an accurately sized front-facing image of the lesion. The experts then

laid an image of petitioner‘s lower teeth over the corrected image of the lesion,

and they found no match, although they could not definitively rule out petitioner‘s

teeth as a possible source of the lesion.

As explained earlier (pp. 17-18, ante), Dr. Sperber‘s posttrial change of

view regarding the statistical prevalence of petitioner‘s abnormal dentition and

regarding the cause of the lesion on murder victim Pamela‘s hand does not by

itself establish that his opinion offered at trial was ―false evidence‖ under Penal

Code section 1473, subdivision (b). In the habeas corpus proceedings, Dr. Sperber

did not testify that he relied on new technology in revising his views about the

lesion. When an expert witness merely changes an earlier-given opinion, without

relying on any significant advance in the witness‘s field of expertise or in the

available technology, no reason exists to value the later opinion over the earlier.

Likewise, the fact here that other dental experts disagree with or are critical of the

opinion Dr. Sperber gave at trial does not by itself establish that his trial opinion

was false. As noted (p. 18, ante), opinion testimony often includes a subjective

component, and good faith disagreements among credible experts are

commonplace. That point is particularly relevant here, where the question at issue

was an attempt to surmise the cause of an indistinct reddening and bruising of the

murder victim‘s skin.

But the opinion Dr. Sperber offered at trial could qualify as ―false

evidence‖ for purposes of Penal Code section 1473‘s subdivision (b) if, for

example, a generally recognized and relevant advance in science or technology

proved under the preponderance of the evidence standard that the trial opinion was

objectively untrue. (See p. 18, ante.)

20

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The district attorney does not contend that the technology to remove angular

distortion from photographs existed at petitioner‘s 1997 murder trial, and that the

defense therefore should have used such technology at trial to impeach Dr. Sperber.

(See People v. Marshall (1996) 13 Cal.4th 799, 830-831 [―We conclude defendant

waived his claim that his conviction was based on false testimony by failing to raise it

at trial when the falseness of [the] testimony was well known to him . . . .‖].) In

addition, testimony at the 2007 habeas corpus evidentiary hearing established that the

technology to remove such distortion did not exist.4 In light of that testimony, we

conclude that this case involves a generally recognized and relevant advance in

technology. Here, however, the new technology has not proved that any portion of

Dr. Sperber‘s trial testimony was objectively untrue.

Dr. Sperber testified at the 1997 trial that petitioner‘s dental irregularity

―might‖ occur in 2 percent or less of the general population, but he added that this

estimate was not based on any scientific studies. The availability of new

technology to remove angular distortion from photographs has not proved that

Dr. Sperber‘s estimate regarding the prevalence of petitioner‘s abnormal dentition

was objectively untrue. Moreover, Dr. Sperber‘s testimony at the habeas corpus

proceeding merely reiterated what he had said at trial, that the percentage was an

estimate that was not based on any scientific studies.


4

Dr. Sperber testified at the hearing that the technology in question was not,

to his knowledge, available in 1997. He acknowledged that there may have been
some initial studies, but he said that forensic dentists were not using the
technology. Dr. Golden agreed with Dr. Sperber on this point. Drs. Bowers and
Johansen testified that there were a few articles in the late 1990‘s that led to their
use of the technique starting in 2000. In addition, Dr. Bowers‘s declaration in
support of the habeas corpus petition stated that the computerized technology ―did
not exist either in the forensic literature [or] forensic casework at the time of the
1997 trial of Mr. Richards,‖ and that ―the methods [he and Dr. Johansen used]
were peer reviewed and published after [petitioner‘s] conviction.‖

21

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Dr. Sperber further testified at trial that the lesion on murder victim

Pamela‘s hand was a human bite mark, and that he could not rule out petitioner‘s

teeth as a possible source of the mark. With the benefit of new technology,

petitioner‘s experts at the habeas corpus evidentiary hearing shed doubt on those

conclusions, but even with the new technology, these experts still could not

definitively rule out petitioner‘s teeth as a possible source of the mark.5

5

The dissent argues that by using the word ―definitively‖ in this context, we

are imposing too high a burden of proof on petitioner, and that petitioner need
only prove the falsity of Dr. Sperber‘s trial testimony by a preponderance of the
evidence. (Dis. opn. of Liu, J., post, pp. 9-13.) The dissent discusses by way of
comparison this court‘s decision in In re Malone (1996) 12 Cal.4th 935, in which a
prosecution informant made conflicting statements regarding whether he had
fabricated his trial testimony. Noting that the informant had ―a practice of
fabricating information on pending criminal matters‖ (id. at p. 963), Malone
accepted the referee‘s finding that the petitioner had proved the falsity of the
informant‘s trial testimony by a preponderance of the evidence (id. at pp. 962-
963).


We agree with the dissent that the preponderance-of-the-evidence standard

applies. But the dissent fails to appreciate the difference between eyewitness
testimony from a witness who had a practice of fabrication and good faith expert
opinion about a question as elusive as what may have caused an indistinct bruise,
which is the matter at issue here. One does not prove a subjective opinion false by
presenting testimony conceding its possible truth. That is particularly so when, as
here, the opinion being proved false was highly tentative at the outset (asserting
that petitioner‘s dentition is ―consistent with‖ the bite mark) and the opinions
being used to prove its falsity are equally tentative (asserting, for example, that the
expert ―would tend to rule out [petitioner]‖). It is as if a meteorologist‘s forecast
that ―there could be some rain today‖ were being disproved by another
meteorologist‘s forecast that despite the heavy clouds, ―I tend to think it won‘t
rain.‖ Whatever one might think of the second meteorologist‘s forecast, it does
not prove the first forecast false.


Thus, the dissent confuses the standard of proof with the question of what

must be proved. The falsity of the trial evidence must be proved, and in the case
of a tentative opinion regarding a subjective question, the opinion is not proved
false if, as here, the petitioner‘s experts concede it might be true. Otherwise, every
criminal case becomes a never-ending battle of experts over subjective assertions
that can never be conclusively determined one way or the other.

22

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Dr. Johansen, for example, could not exclude petitioner‘s teeth as a possible

source of the mark, but in his opinion it was just as likely that the indistinct lesion

was caused by the fencing material as it was by petitioner‘s teeth. The other

doctors found no match to petitioner‘s teeth, but they also did not absolutely rule

out petitioner‘s teeth as a possible source of the mark. Petitioner‘s habeas corpus

evidence at most calls into question Dr. Sperber‘s opinion at trial that petitioner‘s

teeth could have been the source of the mark, but it has not proved that opinion to

be objectively untrue. Hence, Dr. Sperber‘s trial opinion is not ―false evidence‖

for purposes of section 1473, subdivision (b).

Because petitioner failed to establish that any of the evidence offered at his

1997 trial was objectively false, the false evidence provision of Penal Code section

1473‘s subdivision (b) does not apply here, and petitioner is not entitled to habeas

corpus relief on that ground. Nevertheless, the question remains whether he is

entitled to habeas corpus relief on the basis of newly discovered evidence.

B. New Evidence

As noted, habeas corpus relief is appropriate if the petitioner presents new

evidence that ― ‗point[s] unerringly to innocence or reduced culpability.‘ ‖ (In re

Clark, supra, 5 Cal.4th at p. 766.) Petitioner argues that the evidence he presented

at the evidentiary hearing meets this standard. We disagree, as discussed below.

1. Lesion on Pamela’s hand

As discussed in regard to petitioner‘s false evidence claim (pp. 19-20,

ante), Drs. Golden, Bowers, and Johansen testified at the evidentiary hearing that

by removing the angular distortion from the photograph of the lesion on murder

victim Pamela‘s hand, they concluded that petitioner‘s teeth did not match the

lesion, and that the lesion might not even be a bite mark. This evidence tended to

undermine Dr. Sperber‘s opinion at the 1997 trial that the lesion was a bite mark,

23

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and that petitioner‘s teeth could not be ruled out as a possible source of the mark.

This new evidence, however, does not ― ‗point unerringly to innocence or reduced

culpability‘ ‖ (In re Clark, supra, 5 Cal.4th at p. 766), as we explain below.

The case against petitioner was strong. When Pamela‘s murder took place,

petitioner and Pamela were in the process of ending their marriage, and Pamela

planned on leaving petitioner. No other motive (such as robbery or rape) appears

for Pamela‘s murder. The remote property where the couple lived was guarded by

several dogs that were hostile to strangers, so it is unlikely that a person other than

petitioner (who was familiar to the dogs) would have had access to the property.

Footprints and tire tracks in the soft ground at the couple‘s property indicated that

no one other than petitioner, Pamela, and the sheriff‘s investigators had been

present on the night of the murder. When the deputy sheriff responding to

petitioner‘s 911 telephone call arrived at the murder scene at 12:30 a.m.,

petitioner‘s demeanor seemed ―rehearsed,‖ and petitioner knew an unusual amount

of detail about the crime scene, despite the darkness. (See pp. 3-4, ante.)

At that time, petitioner told the deputy that the battery in the camper had

lost its charge, that he did not turn on the generator, and that he had no light. Yet

petitioner was able to take the deputy on a detailed tour of the crime scene. He

knew that Pamela‘s pants were lying next to the generator. He knew that her

underwear was inside the camper. He knew that her blood was inside the camper

on the pillow. He knew that there was ―blood on rocks up against the hill.‖ He

knew that there was a bloodstained paving stone that had been thrown ―over the

side of the hill.‖ He also theorized about what Pamela was doing when her

murderer arrived, where the murderer confronted Pamela, and what she did in her

defense. And he surmised that the murderer had used a cinderblock to kill Pamela.

(See pp. 3-4, ante.)

24

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Furthermore, Pamela‘s artificial fingernail was broken (apparently in her

struggle with her assailant), and fibers matching petitioner‘s blue cotton shirt were

found wedged in the crack of the broken fingernail. Also, petitioner had Pamela‘s

bloodstains on his pants and shoes — stains that in the opinion of the prosecution‘s

expert witness were from blood spatter, not from drips or contact (indicating that

petitioner was present when Pamela‘s skull was smashed). (See pp. 4-5, ante.)

All of that evidence pointed persuasively to petitioner‘s guilt.

Dr. Sperber‘s trial testimony was also evidence pointing to petitioner‘s guilt,

although it was hardly conclusive. We cannot say that petitioner has ―unerringly‖

established his innocence (In re Clark, supra, 5 Cal.4th at p. 766) merely by

casting doubt on Dr. Sperber‘s conclusions, when he has not undermined the other

evidence establishing his guilt.

2. Blue fibers

At the 1997 trial, the prosecution‘s evidence showed that murder victim

Pamela‘s artificial fingernail was broken (apparently in her struggle with her

assailant), and that wedged in the crack of the broken fingernail were blue fibers

indistinguishable from those in the blue cotton shirt that petitioner was wearing on

the night of the murder. Petitioner‘s evidence presented at the 2007 habeas corpus

evidentiary hearing indicates that the blue fibers embedded in the crack in

Pamela‘s fingernail may have found their way into that crack after the crime, not

before. This is not new evidence, however. (See In re Hall, supra, 30 Cal.3d at

p. 420 [a habeas corpus petitioner must present evidence that was unavailable at

trial].) It is based on an autopsy photograph that existed at the time of petitioner‘s

trial. In seeking habeas corpus relief, petitioner has merely made a high resolution

scan of that photograph and increased the color saturation. Moreover, the

evidence is far from conclusive. Petitioner‘s evidence shows that the fibers, which

25

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were visible in a video made after the autopsy, were not visible in the still

photograph taken during the autopsy. That fact, however, does not mean that the

fibers were not present. Petitioner offered no evidence regarding the technology

used to make the original autopsy photograph (in which the fibers were not

visible). By contrast, the video (in which the fibers were visible) was made by

attaching a video recorder to a microscope that magnified Pamela‘s fingers

between 10 and 100 times. The technology by which the earlier photograph was

made may not have resulted in a photograph with sufficient detail to record the

presence of the microscopic blue fibers, and a high resolution scan of a photograph

cannot improve the limitations of the original. Thus, the nonappearance of the

blue fibers in the earlier photograph does not conclusively establish their absence

from Pamela‘s fingernail.

Moreover, prosecution criminalist Daniel Gregonis, who detected the blue

fibers, testified at trial that they were embedded deep in the crack of Pamela‘s

broken fingernail. Therefore, it may be that the blue fibers became visible only

after Gregonis opened the crack in the fingernail and removed some of the fibers

for closer inspection.

Petitioner also presented evidence that prosecution trial witness Craig

Ogino, who examined scrapings from Pamela‘s fingertips, and who may also have

examined Pamela‘s fingers, did not mention the blue fibers in his report. But this

evidence is inconclusive. The blue fibers were first discovered by criminalist

Gregonis when he used a microscope to examine Pamela‘s fingertips. Ogino may

not have examined the fingertips, and if he did, he may have done so without the

aid of a microscope, and therefore he may have overlooked the fibers.

As noted (pp. 24-25, ante), the trial record includes significant evidence

pointing persuasively to petitioner‘s guilt, including evidence of motive and

opportunity, evidence that petitioner knew details of the crime scene that only the

26

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murderer could know, and evidence of blood spatter on petitioner‘s clothes and

shoes, indicating that he was present when Pamela‘s head was smashed. Given all

that evidence, we cannot say that petitioner has ―unerringly‖ established his

innocence (In re Clark, supra, 5 Cal.4th at p. 766) simply by presenting evidence

that the blue fibers caught in a crack in Pamela‘s broken fingernail may have come

from a source other than petitioner.

3. Two-centimeter hair

A similar analysis applies to the two-centimeter human hair that

investigators found under Pamela‘s long artificial fingernail. Petitioner‘s evidence

at the habeas corpus evidentiary hearing indicates that this hair belonged to some

third person, not to Pamela or to petitioner. That fact, however, does not point

unerringly to petitioner‘s innocence. The hair might have been from someone

Pamela encountered at the restaurant where she worked or elsewhere. Because

Pamela had ―extended‖ artificial fingernails, the hair might have been lodged

under the fingernail for a day or more without being noticed. In light of the

significant evidence pointing to petitioner‘s guilt (pp. 24-25, ante), petitioner has

not established ― ‗unerring[] . . . innocence‘ ‖ (In re Clark, supra, 5 Cal.4th at

p. 766) simply by showing that the piece of hair under Pamela‘s fingernail was

neither hers nor petitioner‘s.

4. Male DNA on paving stone

Petitioner has not proved unerring innocence by presenting evidence at the

2007 habeas corpus proceeding that some of the DNA on the paving stone that

might have been used to kill Pamela came from one or more men other than

petitioner.

At the 1997 trial, prosecution criminalist Gregonis testified that the

cinderblock was one of the murder weapons, but that the paving stone might also

27

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have been used as a weapon. His laboratory notes indicated a specific location on

the paving stone where he expected to find the murderer‘s DNA. After the trial,

petitioner‘s expert found traces of male DNA not belonging to petitioner in the

approximate location on the paving stone that Gregonis had indicated in his notes.

But Gregonis testified at the habeas corpus evidentiary hearing that the DNA in

question was a small amount that could have come from contamination of the

evidence during courtroom handling. We conclude the presence on the

bloodstained paving stone of trace DNA that was not from murder victim Pamela

or from petitioner does not ― ‗point unerringly to [petitioner‘s] innocence‘ ‖ (In re

Clark, supra, 5 Cal.4th at p. 766), in light of all the evidence supporting

petitioner‘s conviction of his wife‘s murder. (Pp. 24-25, ante.)

5. Cumulative effect of new evidence

Finally, even when all the new evidence is considered together, we

conclude that it does not ― ‗point unerringly to [petitioner‘s] innocence.‘ ‖ (In re

Clark, supra, 5 Cal.4th at p. 766.) The evidence that petitioner was the actual

murderer remains strong.

Because petitioner has failed to establish that any of the evidence offered at his

1997 trial was false (Pen. Code, § 1473, subd. (b)), and because his newly discovered

evidence does not ― ‗point unerringly to innocence or reduced culpability‘ ‖ (In re

Clark, supra, 5 Cal.4th at p. 766), the superior court erred in granting habeas corpus

relief, and the Court of Appeal was correct to vacate the superior court‘s order, and to

direct that court to deny the petition for a writ of habeas corpus.

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DISPOSITION

The judgment of the Court of Appeal is affirmed.

KENNARD, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
BAXTER, J.
CORRIGAN, J.

29

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DISSENTING OPINION BY LIU, J.

Before 1975, a petitioner seeking habeas corpus relief could generally

prevail only where the prosecution knowingly offered perjured testimony or the

petitioner was able to produce new evidence pointing unerringly toward

innocence. (See maj. opn., ante, at p. 14.) In 1975, the Legislature amended the

Penal Code to provide new grounds for relief when a conviction or guilty plea

rested on false evidence. (See Stats. 1975, ch. 1047.) The statute now in effect

makes no distinction with respect to how false evidence was introduced, nor does

it condition relief upon the petitioner‘s ability to produce new evidence that was

not available at trial. Instead, the petitioner is entitled to relief whenever ―[f]alse

evidence that is substantially material or probative on the issue of guilt or

punishment was introduced.‖ (Pen. Code, § 1473, subd. (b), hereafter

section 1473(b); all further statutory references are to the Penal Code.) As the

court observes, ―under the present version of section 1473 it does not matter why

evidence is false or whether any party to the proceeding knew it was false. So

long as some piece of evidence at trial was actually false, and so long as it is

reasonably probable that without that evidence the verdict would have been

different, habeas corpus relief is appropriate.‖ (Maj. opn., ante, at p. 15.)

Although the false evidence statute makes no distinction between lay and

expert testimony, today‘s decision imposes novel burdens on a petitioner who

seeks relief under section 1473(b) where false evidence was introduced through

1

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expert testimony. But as explained below, there is no reason to treat expert

testimony differently from lay testimony under section 1473(b). I would hold,

consistent with our precedents, that ―false evidence‖ within the meaning of section

1473(b) is established when a petitioner shows by a preponderance of the evidence

either the falsity of an expert‘s testimony or the falsity of an underlying fact

essential to an expert‘s testimony. Because petitioner has met that burden here,

and because the false evidence was sufficiently prejudicial to cast doubt on the

verdict of guilt, I respectfully dissent.

I.

Section 1473(b) provides in relevant part: ―A writ of habeas corpus may be

prosecuted for, but not limited to, the following reasons: (1) False evidence that is

substantially material or probative on the issue of guilt or punishment was

introduced against a person at any hearing or trial relating to his incarceration

. . . .‖ This court has repeatedly considered the applicability of section 1473(b) to

cases of lay testimony, particularly eyewitness identification. (See, e.g., In re Bell

(2007) 42 Cal.4th 630 [eyewitness identification]; In re Roberts (2003) 29 Cal.4th

726 (Roberts) [eyewitness identification]; In re Malone (1996) 12 Cal.4th 935

(Malone) [prison informant]; In re Sassounian (1995) 9 Cal.4th 535 (Sassounian)

[prison informant]; In re Hall (1981) 30 Cal.3d 408 (Hall) [eyewitness

identification].) The question now before us is how to apply the same statutory

provision to expert testimony that is alleged to be false.

Section 1473(b) makes no distinction between lay and expert testimony.

Yet today‘s opinion effectively narrows the availability of habeas corpus relief

when the allegedly false testimony was offered by an expert rather than a lay

witness. The court does so by announcing the following rule: ―When . . . there

has been a generally accepted and relevant advance in the witness‘s field of

expertise, or when a widely accepted new technology has allowed experts to reach

2

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an objectively more accurate conclusion, a strong reason may exist for valuing a

later opinion over an earlier opinion. If, and only if, a preponderance of the

evidence shows that an expert opinion stated at trial was objectively untrue, the

false evidence standard applies. In that narrow circumstance, if it is reasonably

probable that the invalid opinion given at trial affected the verdict, then habeas

corpus relief is appropriate.‖ (Maj. opn., ante, at pp. 18–19, fn. omitted.) I see

two problems with this approach.

A.

The court says that a petitioner must ―show[] that an expert opinion stated

at trial was objectively untrue‖ in order to meet the false evidence standard. (Maj.

opn., ante, at p. 18.) By this, the court means that the ultimate opinion rendered

by the expert — here, Dr. Sperber‘s trial testimony that the lesion on the victim‘s

hand was ―consistent with‖ petitioner‘s teeth — must be proven objectively

untrue. Petitioner fell short of this proof, the court says, because his experts in the

habeas corpus proceeding ―could not definitively rule out petitioner‘s teeth as a

possible source of the lesion.‖ (Maj. opn., ante, at p. 20, italics in original.)

By focusing exclusively on whether the expert‘s ultimate opinion has been

proven untrue, the court overlooks an important and conventional manner in which

trial testimony may later be proven false. Consider the facts of Hall, supra, 30

Cal.3d 408. Three brothers — Victor Lara, Daniel Lara, and Jesse Ortiz — were

assaulted by several youths. One of the youths had a gun and fired several shots,

―slightly wounding Victor and Daniel, and killing Jesse with a single bullet in the

head.‖ (Id. at p. 414.) As eyewitnesses to the crime, Victor and Daniel testified at

trial that the petitioner was the gunman. (Ibid.) After trial, however, the Lara

brothers recanted their testimony, believing that someone else was the gunman.

Victor signed ―a declaration stating in part, ‗I never got a good look at the person

who shot my brother. I was mistaken when I later identified [petitioner] Hall as

3

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the killer . . . .‘ Daniel Lara testified in the same fashion, explaining his erroneous

identification by the fact that he was distraught about his brother‘s death and

careless in deciding which of the . . . youths were responsible.‖ (Id. at p. 417.)

While acknowledging that ―we routinely view recantations with suspicion,‖ the

court found the recantations credible and sustained the habeas corpus referee‘s

finding to that effect. (Id. at p. 418.) The court noted that this was not a case of

perjured trial testimony: ―there is no evidence whatever of ulterior motive or

dishonesty on the part of either brother.‖ (Id. at pp. 417–418.) On these facts, the

court held under section 1473(b) that ―the trial testimony of the Laras identifying

petitioner as the killer apparently was false, albeit unintentionally so.‖ (Id. at

p. 424.)

The Lara brothers‘ trial testimony was false evidence because the

perceptual basis for their eyewitness testimony turned out to be false. Victor said

― ‗I never got a good look at the person who shot my brother,‘ ‖ and Daniel said he

had been ―distraught‖ and ―careless‖ in identifying the gunman. (Hall, supra, 30

Cal.3d at p. 417.) In prevailing on his false evidence claim, the petitioner in Hall

did not need to show that the ultimate fact to which the Lara brothers testified at

trial — that the petitioner was the gunman — was untrue. It was enough to show

that the perceptual basis of the trial testimony — that the Lara brothers, as

eyewitnesses to the crime, were well-situated to identify the gunman — was

untrue. When a lay witness in good faith gives testimony that the witness later

concedes he or she had no perceptual basis to give, that witness has given false

evidence within the meaning of section 1473(b). And that is so regardless of

whether other evidence demonstrates the truth or falsity of the ultimate fact to

which the witness testified.

There is no reason to treat expert testimony differently. Just as the truth or

falsity of eyewitness testimony under section 1473(b) depends on the truth or

4

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falsity of underlying facts concerning the witness‘s perceptual abilities, the truth or

falsity of expert testimony depends on the truth or falsity of underlying facts

essential to the expert‘s inferential method and ultimate opinion.

The present case illustrates the point. Dr. Sperber‘s trial testimony

culminated in his opinion that the lesion on the victim‘s hand was consistent with

petitioner‘s abnormal dentition. To reach that conclusion, Dr. Sperber relied on a

series of intermediate steps. He explained how forensic odontologists use crime

scene or autopsy photographs to make a dental comparison. He explained how he

determines whether an injury is in fact a bite mark, and he concluded from a single

photograph of the victim‘s hand that the lesion was a human bite mark. He

explained why he believed the mark came from a lower not upper jaw. He noted a

gap in the lesion where it appears an incisor tooth failed to leave a mark. He then

showed the jurors a mold of petitioner‘s teeth, explaining that petitioner‘s right

incisor was abnormal and would not have left a mark. He further explained how

he compared the mold from petitioner‘s mouth with the photograph of the lesion.

Based on these steps, Dr. Sperber concluded that the mark was consistent with

petitioner‘s teeth.

A crucial fact underlying all of Dr. Sperber‘s testimony was that the single

photograph of the victim‘s hand was alone a sufficient basis for reaching his

ultimate conclusion. He acknowledged problems with the photograph, including

distortion, and he said additional photographs would have helped him render a

more definite conclusion. But he never wavered from the essential premise that

the single photograph was itself a sufficient basis to render an opinion. Based on

that premise, Dr. Sperber offered his expert opinion that the lesion was a bite mark

consistent with petitioner‘s teeth. That underlying premise — akin to the

perceptual premise of the eyewitness testimony shown to be false in Hall — has

now been shown to be false by petitioner‘s habeas corpus evidence.

5

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The testimony at the habeas corpus proceeding shows by a preponderance

of the evidence that the photograph alone did not provide a sufficient basis for

comparison with petitioner‘s teeth. Petitioner first presented testimony by Dr.

Sperber himself. After reviewing additional autopsy photographs not provided to

him by the prosecution at the time of trial, Dr. Sperber was asked, ―Doctor, had

you had those photographs prior to your testimony in 1997 at the trial of Mr.

Richards, would they have affected your opinion?‖ He answered, ―Very

definitely.‖ In light of those additional photographs and after considering other

problems with his analysis, Dr. Sperber testified, ―I don‘t know for sure that that

lesion or that photograph [presented to the jury] depicts a bite mark.‖ And based

on those same factors, Dr. Sperber concluded that ―[m]y opinion today is that

[petitioner‘s] teeth, as we have seen, are not consistent with the lesion on the

hand‖ and that ―I would rule him out basically on the evidence as I‘ve seen now in

hindsight.‖

Petitioner also called Dr. Golden, who had testified at trial that petitioner‘s

teeth were consistent with the lesion, but that the quality of the photograph was

too poor to make a definitive determination as to whether it was or was not

consistent with petitioner. At the habeas corpus hearing, Dr. Golden testified

about advances in technology that allowed experts to correct distortion in

photographs like the one relied on by both him and Dr. Sperber at trial. He further

testified that since that technology came into use, he has personally used that

technology to correct photo distortion in cases in which he testified for the county.

Based on this technology, Dr. Golden testified that he would still view the lesion

as consistent with a human bite mark, though it could also have come from a

variety of sources. In addition, Dr. Golden said he ―would tend to rule out Mr.

Richards . . . as the suspected biter‖ and that ―[a]fter all the subsequent analyses

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with the photographic correction and the digital analysis, my opinion is that I

would exclude him.‖

Petitioner called two additional dental experts: Dr. Johansen and Dr.

Bowers. Dr. Johansen testified at length about the procedure he followed to

correct the distortion in the photograph of the victim‘s hand using Adobe

Photoshop. He also looked at other crime scene photographs not made available

to Dr. Sperber at the time of trial. Even after correcting the photo distortion, Dr.

Johansen concluded that ―the very, very poor quality of the bite mark‖ precluded

him from either including or excluding petitioner as the source of the mark. In his

opinion, it was just as likely that the lesion was caused by fencing material located

under the victim‘s body as by petitioner‘s teeth.

Petitioner also called Dr. Bowers to testify about the process of correcting

photo distortion. After correcting the photograph, Dr. Bowers compared the size

of the lesion to the span of petitioner‘s lower teeth from one side to the other, and

he concluded that the lesion was too small to have been made by petitioner‘s teeth.

Comparing petitioner‘s individual teeth to the lesion, Dr. Bowers found three teeth

that matched the lesion and three that did not. Dr. Bowers testified that such a

match ―doesn‘t have any forensic significance in identifying [the] biter.‖ Finally,

Dr. Bowers testified that the other crime scene and autopsy photographs of the

victim ―raised significant doubt . . . that the hand injury in this original Richards

case was caused by teeth.‖

Significantly, the Attorney General offered no competing evidence. This is

not a case in which a habeas corpus evidentiary hearing has devolved into a fresh

battle of the experts. (Cf. maj. opn., ante, at p. 22, fn. 5.) Instead, all of the

experts provided testimony refuting critical facts underlying Dr. Sperber‘s trial

testimony. In essence, all four experts testified that the photograph did not

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provide a sufficient basis for Dr. Sperber to conclude at trial that the lesion was a

bite mark consistent with petitioner‘s teeth.

There will no doubt be cases where it is more difficult to determine whether

the falsity of one or more facts underlying an expert‘s trial testimony renders the

entire opinion false. In many cases, an expert opinion may be based on a variety

of facts, and the falsity of one fact might not undermine the expert‘s ultimate

conclusion. But this is not such a case. Here, the critical underlying fact — that

the single uncorrected photograph provided Dr. Sperber with a sufficient basis for

matching petitioner‘s teeth to a lesion on the victim‘s hand — was proven false.

Without that premise, Dr. Sperber‘s trial testimony that the lesion was consistent

with petitioner‘s teeth was false evidence. Just as the eyewitness testimony in

Hall was false because it depended crucially on the witnesses having seen

something that it turns out they did not actually see, the expert testimony here was

false because it depended crucially on Dr. Sperber having seen something — a

true photographic representation of the lesion on the victim‘s hand — that it turns

out he did not actually see. In sum, because petitioner has shown by a

preponderance of the evidence that the essential premise of Dr. Sperber‘s trial

testimony was false, it follows that the testimony was false evidence under section

1473(b).

The court suggests that this approach might warrant habeas corpus relief

even if the petitioner‘s experts at the habeas corpus proceeding fully agreed with

the trial expert‘s conclusion but showed that the expert ―relied on a false

assumption to reach that conclusion.‖ (Maj. opn., ante, at p. 18, fn. 2.) This

concern is unwarranted. First, the petitioner would have to show not only that the

trial expert relied on an underlying fact or methodology that turned out to be false,

but also that the falsity was sufficient to undermine the trial expert‘s conclusion.

Second, the petitioner must show prejudice to obtain relief, and it is difficult to see

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how the petitioner could make this showing if the petitioner‘s habeas experts agree

with the trial expert‘s conclusion.

B.

Instead of focusing on the factual underpinnings of the expert‘s trial

testimony, the court looks only at the expert‘s ultimate conclusion. As explained

above, section 1473(b) does not require petitioner to show that Dr. Sperber‘s

ultimate conclusion that the bite mark was consistent with petitioner‘s teeth was

objectively untrue; it is enough that petitioner has shown the falsity of an

underlying premise essential to Dr. Sperber‘s conclusion. Nevertheless, showing

Dr. Sperber‘s ultimate conclusion to be objectively untrue is an alternative means

of establishing false evidence. On the facts here, I believe petitioner has met that

burden as well. The court reaches a contrary conclusion by unjustifiably

heightening the standard of proof required to show the falsity of expert testimony.

Under settled law, a petitioner seeking habeas corpus relief ―bears the

‗burden . . . of alleging . . . the facts on which he relies in support of his claim [or

claims] for relief . . . .‘ [Citation.] He also ‗bears the burden of proving [those]

facts . . . by a preponderance of the evidence.‘ [Citation.]‖ (Sassounian, supra, 9

Cal.4th at pp. 546–547.) Thus a petitioner seeking relief based on false evidence

must prove — not ―definitively‖ or ―absolutely,‖ but by a preponderance of the

evidence — that false evidence was offered against him at trial.

We made clear the proper application of this standard to a false evidence

claim in Malone, supra, 12 Cal.4th 935. There, a prison informant testified at the

petitioner‘s trial that the petitioner had confessed to him several crimes. The

petitioner sought relief after the informant recanted his original trial testimony,

then recanted his recantation. We said: ―From this record, it is impossible to

know with certainty whether [the informant] lied or told the truth at petitioner‘s

trial. Petitioner‘s burden, however, is only to prove his claims by a preponderance

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of the evidence. [Citation.] On the basis of all the evidence, we agree with the

referee [that the informant] probably lied when he testified petitioner confessed to

him . . . .‖ (Id. at p. 962.) We did not require the petitioner in Malone to

definitively show that he never confessed to the informant. It was enough that the

informant ―probably lied‖ when he testified to the contrary.

In the present case, Dr. Sperber testified at trial that the lesion on the

victim‘s hand was ―consistent with‖ petitioner‘s teeth. This testimony is false if

the lesion was in fact inconsistent with petitioner‘s teeth. Under Malone, it is

enough for petitioner to show the inconsistency by a preponderance of the

evidence. Petitioner‘s habeas corpus evidence meets this standard. As previously

noted, Dr. Sperber examined additional evidence at the habeas proceeding and

disavowed his trial testimony, saying: ―I would rule [petitioner] out basically on

the evidence as I‘ve seen now.‖ A second expert, Dr. Golden, used new

technology to remove angular distortion from the photo of the lesion and said,

―After all the subsequent analyses with the photographic correction and the digital

analysis, my opinion is that I would exclude him.‖ A third expert, Dr. Bowers,

observed three areas of inconsistency between petitioner‘s teeth and the lesion,

and he also testified that the lesion ―was too small . . . to have been created by Mr.

Richards‘ lower teeth in terms of dimension of that area.‖ Dr. Bowers also said he

had ―significant doubt . . . that the hand injury in this original Richards case was

caused by teeth.‖ A fourth expert, Dr. Johansen, said that ―due to the very, very

poor quality of the bite mark and the very little information contained within the

bite mark, . . . I cannot exclude [petitioner] or disexclude him from the population

of possible individuals that could have made that mark.‖ He also said it was just

as likely the lesion was caused by nearby fencing material as by petitioner‘s teeth.

Thus, two experts expressly said they would ―rule out‖ or ―exclude‖

petitioner. A third expert likewise ―found no match‖ (maj. opn., ante, at p. 10)

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between the lesion and petitioner‘s teeth based on size and other physical features,

and ―doubted whether the hand lesion was a human bite mark‖ (ibid.). A fourth

expert found the quality of the photograph too poor to rule in or rule out

petitioner‘s teeth as a possible source of the lesion. Based on the totality of the

experts‘ testimony, petitioner has shown by a preponderance of the evidence that

the lesion was inconsistent with his teeth.

Though purporting to apply the preponderance of the evidence standard, the

court concludes that petitioner did not meet his burden because the habeas experts

failed to conclude definitively that he was not the source of the bite. The court

says the experts at the habeas corpus hearing ―could not definitively rule out

petitioner‘s teeth as a possible source of the lesion‖ (maj. opn., ante, at p. 20),

―still could not definitively rule out petitioner‘s teeth as a possible source of the

mark‖ after enhancing the photograph (id. at p. 22), and in the end ―did not

absolutely rule out petitioner‘s teeth as a possible source of the mark‖ (id. at

p. 23). The assertion that the experts could not ―definitively‖ or ―absolutely‖ rule

out petitioner‘s teeth is what leads the court to conclude that petitioner has not

proven Dr. Sperber‘s trial testimony to be objectively untrue. (Ibid.)

As noted, three of the four habeas experts did rule out petitioner‘s teeth,

and the fourth expert declined to draw any conclusion from the photo of the lesion.

In concluding this is not enough, the court effectively requires petitioner to show

that all of the habeas evidence, without exception, would ―definitively‖ or

―absolutely‖ rule out his teeth. But if that is petitioner‘s burden, then the court has

―confuse[d] the standard of proof with the question of what must be proved‖ (maj.

opn., ante, at p. 22, fn. 5) by requiring petitioner to prove the inconsistency to a

virtual certainty rather than by a preponderance of the evidence. In Malone, we

held that proof of falsity by a preponderance of the evidence was satisfied by the

referee‘s finding that the informant ―probably lied,‖ even as we acknowledged that

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―it is impossible to know with certainty whether [the informant] lied or told the

truth at petitioner‘s trial.‖ (Malone, supra, 12 Cal.4th at p. 962.) Because proof of

falsity by a mere preponderance of the evidence always admits the possibility that

the contested trial evidence ―might be true‖ (maj. opn., ante, at p. 22, fn. 5), the

court‘s objection to the straightforward application of the preponderance of the

evidence standard to this case suggests, in essence, the court‘s disagreement with

the standard itself.

At the core of the court‘s reasoning that petitioner‘s evidence must

―definitively‖ or ―absolutely‖ rule out his teeth is the premise that experts ―testify

‗in the form of an opinion‘ ([Evid. Code], § 801, italics added)‖ and that ―[t]he

word ‗opinion‘ implies a subjective component to expert testimony.‖ (Maj. opn.,

ante, at p. 16.) But the court‘s reading of the word ―opinion‖ is a miscue. The

opinions typically given by experts are not subjective in the ―chocolate tastes

better than vanilla‖ sense. Instead, opinion testimony may include a subjective

component in the sense that experts use professional judgment in the course of

applying a methodology or drawing inferences to reach an ultimate conclusion.

But the ultimate conclusion itself — the evidence that is either true or false within

the meaning of section 1473(b) — is often, as here, a representation of objective

fact.

In the present case, Dr. Sperber gave an expert opinion at trial, but he was

opining on a question of fact. We call his testimony an ―opinion‖ because of the

inferences and judgments he used to derive an ultimate conclusion. But the

ultimate conclusion itself — the lesion on the victim‘s hand was ―consistent with‖

petitioner‘s teeth — is a claim of objective fact. Either the lesion was consistent

with petitioner‘s teeth, or it wasn‘t. Either way, this is a matter of objective fact

that is subject to falsification like other matters of objective fact. Malone holds

that the standard for showing false evidence is proof of falsity by a preponderance

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of the evidence. The petitioner in Malone did not definitively prove the informant

lied about the confession; the petitioner only showed it was more likely than not.

Similarly here, petitioner need not definitively prove the lesion was inconsistent

with his teeth; to prove the expert‘s conclusion false, he only needs to show that

the lesion was inconsistent with his teeth by a preponderance of the evidence.

Petitioner has met that burden.

II.

I now consider whether the false evidence was substantially material and

probative on the issue of guilt. ― ‗False evidence is ―substantially material or

probative‖ if it is ―of such significance that it may have affected the outcome,‖ in

the sense that ―with reasonable probability it could have affected the

outcome . . . .‖ [Citation.] In other words, false evidence passes the indicated

threshold if there is a ―reasonable probability‖ that, had it not been introduced, the

result would have been different. [Citation.] The requisite ―reasonable

probability,‖ we believe, is such as undermines the reviewing court‘s confidence

in the outcome.‘ ‖ (Malone, supra, 12 Cal.4th at p. 965, italics added by Malone;

see Roberts, supra, 29 Cal.4th at pp. 741–742.) We make such a determination

based on the totality of the relevant circumstances. (Malone, at p. 965.)

One notable aspect of this case is the history of two hung juries before the

third was able to reach a verdict. The importance of a trial history that includes

hung juries is underscored by this court‘s discussion in People v. Gonzalez (2006)

38 Cal.4th 983 (Gonzalez). In Gonzalez, we upheld the judgment of guilt and the

special circumstance finding of multiple murder and personal use of a firearm.

But the court found error in the penalty phase where the judge denied reciprocal

discovery of the prosecution‘s evidence in rebuttal after the defendant disclosed

his evidence in mitigation. In light of that erroneous ruling, the defendant opted

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not to present mitigating evidence as he did in the first penalty phase. The first

penalty phase trial had resulted in a hung jury.

Because the state law error in Gonzalez occurred at the penalty phase of a

capital trial, the question was whether there was a reasonable possibility (not

probability) that the error affected the verdict. (See People v. Brown (1988) 46

Cal.3d 432, 446–448.) The court found that there was ―a strong suggestion that

the defense would have been different‖ in the absence of the trial court‘s erroneous

ruling. (Gonzalez, supra, 38 Cal.4th at p. 962.) We then said: ―We also find a

reasonable possibility the verdict would have been different had defendant

presented the proffered mitigating evidence. Although the crime here was

egregious, a death verdict was not a foregone conclusion. Indeed, the first penalty

trial ended with a hung jury. The aggravating evidence of defendant‘s other

crimes (possession of an assault weapon, two assaults on inmates, and possession

of a shank in jail), although serious, was not overwhelming. Father Horan‘s

proffered evidence regarding the ability of persons to change was not very

compelling, but defendant presented similar evidence in mitigation at the first

penalty trial and obtained a hung jury. The main difference between the two trials

was that defendant presented mitigating evidence at the first trial that he did not

present at the second trial. Under the circumstances, we find it reasonably

possible the verdict at the second trial would have been different had defendant

presented similar mitigating evidence at the second trial.‖ (Ibid.)

Unlike Gonzalez, which considered an evidentiary issue at the penalty

phase, here we must determine whether, without the prosecution‘s expert

testimony, there is a reasonable probability the verdict would have been different.

The standard is more exacting, but the present record supports such a finding for

much the same reason as in Gonzalez.

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Today‘s opinion accurately presents the evidence supporting petitioner‘s

guilt. (Maj. opn., ante, at pp. 2–8, 24.) I agree this evidence was substantial, and

the conviction would survive a sufficiency-of-the-evidence review. At the same

time, all of the prosecution‘s evidence was circumstantial, and a guilty verdict was

not a foregone conclusion. Petitioner‘s defense highlighted the limited amount of

time petitioner would have had to commit the crime even if he had sped home

from his workplace that night, driving much faster than the posted speed limit.

Other evidence showed that the victim had answered her phone throughout the day

but then stopped answering the phone hours before petitioner came home, with no

indication she had left the premises. And although a prosecution witness testified

that bloodstains on petitioner‘s pants and shoes were consistent with spatter as a

result of standing near the victim when the injuries were inflicted, a defense expert

testified that the spatter was consistent with contact or transfer when petitioner

cradled the body postmortem.

The first two trials to reach jury deliberations both ended with hung juries.

The final jury also declared it was deadlocked and sought further instruction on

the meaning of ―reasonable doubt.‖ The trial court denied petitioner‘s motion for

a mistrial and refused further instruction on the meaning of ―reasonable doubt,‖

sending the jury back to deliberate. Three and a half hours later, it returned a

verdict of guilt.

The main difference between the two trials ending in hung juries and the

final trial ending in a guilty verdict was the bite mark evidence, which was offered

only at the final trial. The purported bite mark was the evidence that most directly

linked petitioner to the crime. Moreover, the bite mark evidence was not limited

to Dr. Sperber‘s verbal testimony that a lesion on the victim‘s hand was a bite

mark matching petitioner‘s unusual dentition. Dr. Sperber also prepared a

mounted photograph of the lesion along with a plastic overlay created from dental

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molds of petitioner‘s lower teeth, which could be flipped up and down to

demonstrate the ―match‖ between the two. The photograph, overlay, and dental

molds were all admitted into evidence and available to the jurors during

deliberations. Further, Dr. Sperber estimated that only one or two out of a

hundred people share petitioner‘s dental abnormality. Even taking into account

Dr. Sperber‘s admission that he did not know of any scientific studies to back up

that estimate, his expert testimony on the uniqueness of that feature, which was

undisputed by petitioner‘s trial expert, increased the probative value of Dr.

Sperber‘s testimony at the final trial.

When viewed in the context of the remainder of the evidence, Dr. Sperber‘s

testimony was substantially material and probative of petitioner‘s guilt. Indistinct

as it was, the lesion on the victim‘s hand provided a direct and visceral link

between petitioner and the injuries inflicted upon the victim. And while Dr.

Sperber concluded only that the lesion was ―consistent‖ with petitioner‘s teeth, he

coupled that finding with additional testimony that significantly narrowed the

range of possible suspects by focusing on petitioner‘s unusual dentition. In

particular, Dr. Sperber‘s estimate that just one or two out of one hundred

individuals share the same unusual dentition amplified the probative value of the

evidence. Near the end of his closing argument, the prosecution relied on this

piece of evidence: ―And, oh, this person [who committed the crime] also just

happened to share the same dental abnormality as William Richards, who is only

shared by two percent of the population. [¶] . . . [¶] That‘s what you are looking

at. And that, folks is unreasonable. That doesn‘t wash.‖ Without the bite mark

evidence, two juries hung. Even with that evidence, a third jury deadlocked before

returning a guilty verdict. The totality of the circumstances leads me to conclude

that Dr. Sperber‘s testimony was sufficiently probative and material to cast doubt

on the outcome.

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In sum, the underlying basis of Dr. Sperber‘s trial testimony as well as the

testimony itself have been proven false by a preponderance of the evidence, and it

is reasonably probable that the verdict at the final trial would have been different

without Dr. Sperber‘s testimony. Accordingly, I would reverse the Court of

Appeal‘s decision and grant petitioner‘s request for habeas corpus relief.

LIU, J.


WE CONCUR:

WERDEGAR, J.
CHIN, J.

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

Name of Opinion In re Richards
__________________________________________________________________________________

Unpublished Opinion NP opn. filed 11/19/10 – 4th Dist., Div. 2
Original Appeal
Original Proceeding
Review Granted XXX
Rehearing Granted

__________________________________________________________________________________

Opinion No. S189275
Date Filed: December 3, 2012
__________________________________________________________________________________

Court: Superior
County: San Bernardino
Judge: Brian McCarville

__________________________________________________________________________________

Counsel:

Jan Stiglitz for Petitioner William Richards.

Cooley, Lori R. Mason, Kyle C. Wong and Kathlyn A. Querubin for The Innocence Network as Amicus
Curiae on behalf of Petitioner William Richards.

Michael A. Ramos, District Attorney, Grover D. Merritt and Stephanie H. Zeitlin, Deputy District
Attorneys, for Respondent The People.

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

Jan Stiglitz
225 Cedar Street
San Diego, CA 92101
(619) 525-1697

Stephanie H. Zeitlin
Deputy District Attorney
412 Hospitality Lane, First Floor
San Bernardino, CA 92415-0042
(909) 891-3302

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Petition for review after the Court of Appeal reversed the grant of relief on a petition for writ of habeas corpus. This case presents the following issues:
(1) When a petitioner seeks relief on habeas corpus because an expert witness who testified at trial later fundamentally alters the opinion he or she rendered, should this be viewed as a claim that false evidence substantially material or probative on the issue of guilt was presented at trial or as a claim that newly discovered evidence casts "fundamental doubt on the accuracy and reliability of the proceedings" and "undermine[s] the entire prosecution case and point[s] unerringly to innocence or reduced culpability"? (In re Hardy (2007) 41 Cal.4th 977, 1016.)
(2) Is petitioner entitled to relief on either ground in this case?
(3) Is petitioner entitled to habeas corpus relief based on newly discovered DNA evidence?

Opinion Information

Date:	Citation:	Docket Number:
Mon, 12/03/2012	55 Cal. 4th 948 (Cal. 2012), 150 Cal. Rptr. 3d 84 (Cal. 2012), 289 P.3d 860 (Cal. 2012), 12 Cal. Daily Op. Serv. 13209, 2012 Daily Journal D.A.R. 16126, 2012 Cal. LEXIS 11005	S189275

Opinion Authors
Opinion	Justice Joyce L. Kennard
Dissent	Justice Goodwin Liu

Brief Downloads
1- S189275 Petitioner's Petition for Review - Filed on December 28, 2010.pdf (2914598 bytes) - Petitioner's Petition for Review - Filed on December 28, 2010
2 - S189275 Department of Corrections and Rehabilitation's Answer to Petition for Review - Filed on January 14, 2011.pdf (1602244 bytes) - Department of Corrections and Rehabilitation's Answer to Petition for Review - Filed on January 14, 2011
3 - S189275 Petitioner's Reply to Answer to Petition for Review - FIled on January 25, 2011.pdf (250407 bytes) - Petitioner's Reply to Answer to Petition for Review - Filed on January 25, 2011
4 - S189275 Petitioner's Opening Brief on the Merits - Filed on May 20, 2011.pdf (2534252 bytes) - Petitioner's Opening Brief on the Merits - Filed on May 20, 2011
5 - S189275 Department of Corrections and Rehabilitation's Answer Brief on the Merits - Filed on June 17, 2011.pdf (1983194 bytes) - Department of Corrections and Rehabilitation's Answer Brief on the Merits - Filed on June 17, 2011
6 - S189275 Petitioner's Reply Brief on the Merits - Filed on July 7, 2011.pdf (639282 bytes) - Petitioner's Reply Brief on the Merits - Filed on July 7, 2011

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

Jun 30, 2014 Annotated by Giulia Scelzo

FACTS: In July of 1997, a jury found petitioner William Richards (from now on “Richards”) guilty of the murder of his wife, Pamela. (Cal. Penal Code sections 187-89). At the time of her death, Pamela lived with Richards in a motor home parked in a remote area of San Bernardino County. The couple used a generator they kept in a small shed for electricity. On the night of the murder, Richards left work at 11:00 p.m. and arrived home to find the generator off and Pamela’s lifeless body on the porch. He immediately notified 911. The police arrived at the scene at 12.30 a.m., but did not investigate the body until the next morning. Instead, they spoke with Richards, who took them on a detailed tour of the scene and alerted them to the presence of a bloodstained paving stone on the property. The following morning, investigators reported that Pamela had been strangled and had her skull crushed with the very same stone mentioned by Richards. An autopsy of the victim revealed an unknown hair under her fingernail and a suspicious lesion on her hand. Subsequent to the autopsy, a criminalist also discovered blue cotton fibers under one of Pamela’s fingernails, which he claimed matched the fabric of Richards’ shirt on the night of the murder. Richards’ first three trials ended in mistrials. At his fourth murder trial, where a jury found Richards guilty of first-degree murder and sentenced him to life in prison, the prosecution introduced additional evidence from a forensic dentist. The dentist testified that the lesion on Pamela’s hand was a human bite mark consistent with the alignment of Richards’ teeth, which only occurred in a small percentage of the population. In 2007, Richards filed a petition for a writ of habeas corpus on false evidence and new evidence grounds. The court granted an evidentiary hearing, where the forensic dentist who had testified at Richards’ trial stated that his estimate of the occurrence of Richards’ teeth alignment had been unsubstantiated, and that he was no longer certain that the mark was a bite. Other experts echoed this conclusion, testifying that, based on new technology for removing angular distortion from photographs, they strongly doubted the mark depicted in the photo was a bite. In addition, Richards presented new evidence that suggested the criminalist planted the cotton fibers on Pamela’s body and showed that both the DNA on the murder weapon and the hair retrieved under Pamela’s fingernail did not belong to her or to Richards. PROCEDURAL HISTORY: The San Bernardino District Attorney charged petitioner with one count of first-degree murder under Cal. Penal Code sections 187-89. His first trial ended in a mistrial* after the jury failed to reach a verdict. His second trial did not even proceed to the jury selection stage because the trial court recused itself. His third trial, like the first, ended in a mistrial caused by the jury’s inability to reach a verdict. The fourth trial, where the prosecution presented new expert testimony from a forensic dentist, resulted in petitioner’s conviction and life sentence, affirmed on appeal. Ten years later, in 2007, petitioner filed a petition for a writ of habeas corpus in the San Bernardino County Superior Court alleging that his conviction was based on false evidence and that new evidence* established his innocence. After issuing an order to show cause and holding an evidentiary hearing, the superior court remanded for a new trial and granted petitioner habeas corpus relief on the grounds that the new evidence pointed unerringly to his innocence. This conclusion, however, rested on very few specific findings of fact. The Court of Appeal stayed proceedings to retry petitioner and reversed the superior court’s decision, finding that petitioner’s claims were subject to an unerring innocence standard* that he had not met. Petitioner subsequently appealed the reversal. The Supreme Court of California granted review and affirmed the judgment of the Court of Appeal, superseding its opinion. ISSUES: (1) Does an expert witness’s trial testimony constitute “false evidence”* under Cal. Penal Code section 1473(b)(1) when posttrial advances in technology raise doubts about the expert’s opinion, but do not conclusively prove it untrue? (2) Is a petitioner entitled to habeas corpus relief when he presents newly discovered evidence that does not point unerringly to innocence or reduced culpability? HOLDING: In an opinion authored by Justice Kennard and joined by Justices Baxter, Cantil-Sakauye, and Corrigan, the California Supreme Court affirmed the Court of Appeal’s decision to deny the petition for a writ of habeas corpus, holding that: (1) Expert testimony that is given at trial and subsequently challenged by advances in technology only constitutes “false evidence” under Cal. Penal Code section 1473(b)(1) if the advances conclusively disprove the expert’s conclusion. (2) When a petitioner presents newly discovered evidence, habeas corpus relief should only be granted if the new evidence “point[s] unerringly to innocence or reduced culpability.” (In re Clark, 5 Cal. 4th 750, 766 (1993)). ANALYSIS: Given the sparseness of the superior court’s specific findings of fact regarding the evidence, the California Supreme Court engaged in a de novo review.* (1) Justice Kennard’s majority opinion creates a novel distinction between the testimony of experts and the testimony of laypersons in applying the protections against false evidence set out in California Penal Code section 1473. Section 1473(b)(1) provides for habeas corpus relief if “false evidence that is substantially material or probative on the issue of guilt or punishment was introduced against a person at any hearing or trial relating to his incarceration.” Id. The statute operates under a reasonable probability standard* and does not require proof of perjury or proof that a representative of the state knew the testimony was false. (In re Wright, 78 Cal. App. 3d 788). In applying the false evidence standard of section 1473 to expert testimony, the court noted that expert opinions are qualitatively different from eyewitness testimony or from physical evidence in that they rely to some extent on subjective methods and assumptions. For this reason, the court concluded it is perfectly reasonable for an expert witness’s opinion to change over time. Evidence that an expert witness has recanted the opinion testimony given at trial thus does not establish that the opinion was false, but merely reflects the subjective component of the testimony. Likewise, advances in science and technology that cast doubt on the testimony given at trial demonstrate false evidence only if they prove the opinion objectively untrue. Based on this reasoning, the court found that the forensic dentist’s testimony at Richards’ trial did not constitute false evidence. First, the dentist’s recantation of his trial testimony merely illustrated the subjective nature of expert opinions. Secondly, the application of the newly discovered angular distortion technology to the photograph of Pamela’s hand weakened the dentist’s testimony, but did not definitively refute his opinion that Richards’ teeth caused the lesion. (2) Following the standard set forth in In re Clark, 5 Cal. 4th 750, 766 (1993), the court held that petitioners who present new evidence in support of a habeas corpus petition are entitled to relief only if that evidence “point[s] unerringly to innocence or reduced culpability.” The opinion engages in a de novo review of all evidence presented at the evidentiary hearing, ultimately finding that Richards failed to meet this test. According to the court, Richards did not “unerringly” demonstrate his innocence by introducing new evidence that the forensic dentist amended his testimony and that both the DNA on the murder weapon and a hair retrieved under the victim’s fingernails did not belong either to the victim or to Richards. Since additional unchallenged evidence established his guilt, these findings did not conclusively prove Richards innocent. This opinion has generated much controversy. The court’s requirement that evidence that a forensic expert’s conclusions were mistaken must point “unerringly to innocence or reduced culpability,” In re Clark, 5 Cal. 4th 750, 766 (1993) denies relief even to defendants who can show - in compliance with Section 1473(b)(1)’s standard - that, had the expert’s mistaken opinion not been introduced, it is reasonably probable that the verdict would have been different. Moreover, the decision creates a new hurdle to correcting erroneous scientific evidence. Accordingly, the California Lawyer has termed the decision “the worst [California] opinion of the year,” and institutions like the California Innocence Project have undertaken Richards’ advocacy. Justice Liu Dissent: In his dissent, joined by Justices Werdegar and Chin, Justice Liu takes issue with the court’s disparate treatment of expert testimony and lay testimony under section 1473(b). Liu argues that the truth or falsity of expert testimony depends on the truth of the facts underlying the expert’s opinion just as much as the truth or falsity of eyewitness testimony depends on the accuracy of the facts that govern their perceptual abilities. By this reasoning, a petitioner who shows the falsity of an underlying premise essential to an expert’s conclusion meets the burden for demonstrating false evidence. Liu contends that the evidence regarding the forensic dentist’s recantation meets this test; accordingly, he would reverse the Court of Appeal’s decision and grant Richards habeas corpus relief. RELEVANT TERMS: *Mistrial - A trial rendered invalid due to an error in the proceedings, such as a jury’s inability to agree on a verdict. *De novo review - Analysis in which all issues are reviewed as if for the first time *Unerring innocence standard - Standard that requires that evidence presented by a petitioner or by a defendant seeking relief point unequivocally to innocence or reduced culpability. *False evidence - Objectively false evidence introduced against an individual at any hearing or trial relating to his incarceration that both tends to prove and is of consequence to his guilt or punishment. *Reasonable probability standard (in the context of false evidence) – Standard that requires a petitioner or a defendant seeking relief to show there is a reasonable probability that, had particular evidence not been introduced, the outcome of a proceeding would have been different. *New evidence - Evidence relevant to the case that was not presented at trial and had not yet been discovered at that stage. TAGS: Criminal law, habeas corpus relief, mistrial, murder, Cal. Penal Code § 1473, Cal. Penal Code § 187, forensic, false evidence, new evidence, Cal. Evidence Code § 720, Cal. Evidence Code § 801, untrue, objective, falsity, technology, bite mark, teeth, dental, forensic dentist, expert testimony, expert witness, eyewitness, trial testimony, recanting, evidentiary hearing, photograph, angular distortion, match, fibers, fingernail, hair, lesion, paving stone, blood, DNA, unerringly, unerring innocence, reduced culpability, reasonable probability, innocence CROSS REFERENCES (in order referenced in opinion): Cases: In re Clark, 5 Cal. 4th 750 (1993) In re Lawley, 42 Cal. 4th 1231 (2008) In re Collins, 86 Cal. App. 4th 1176 (2001) In re Wright, 78 Cal. App. 3d 788 In re Imbler, 60 Cal. 2d 554 (1963) Napue v. Illinois, 360 U.S. 264 (1959) People v. Watson, 46 Cal. 2d 818 (1956) In re Roberts, 29 Cal. 4th 726 (2003) In re Hall, 30 Cal. 3d 408 (1981) People v. Marshall, 13 Cal. 4th 799 (1996) Statutes: Cal. Penal Code § 1473 Cal. Penal Code § 187) Cal. Evidence Code § 720 Cal. Evidence Code § 801 - Annotated by Giulia Scelzo

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