Stanford Law School - Robert Crown Law Library

Filed 5/22/08

IN THE SUPREME COURT OF CALIFORNIA

CHARLES KEITH RICHARDSON,
Petitioner,
S127275
v.
THE SUPERIOR COURT OF
TULARE COUNTY,
Tulare County Superior Court
Respondent;
) No. CRT 27383
THE PEOPLE,
Real Party in Interest.

This writ proceeding is related to petitioner Charles Keith Richardson’s
automatic appeal from a judgment of death. (People v. Richardson (May 22,
2008, S029588) __ Cal.4th __.) Here, we review the denial of petitioner’s
postconviction motion under Penal Code section 14051 for DNA testing of certain
hair samples that were admitted at his capital trial.2 Our review of the trial court’s
ruling turns upon the applicable standard of review and the interpretation of two
key statutory phrases. We conclude that the applicable standard of review for
rulings under section 1405 is abuse of discretion. Having so concluded, we further

1 All further unspecified statutory references are to the Penal Code.
2 We take judicial notice of the record in the related appeal. (Evid. Code, § 452,
subd. (d).)

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conclude that the trial court did not abuse its discretion when it denied petitioner’s
motion on the ground that he failed to demonstrate that “the requested DNA
testing results would raise a reasonable probability that, in light of all the
evidence, [his] verdict or sentence would have been more favorable if the results
of DNA testing had been available at the time of conviction.” (§ 1405, subd.
(f)(5).)
I. STATEMENT OF THE CASE
On September 12, 1989, petitioner was charged in an amended information
with one count of murder. (§ 187.) The victim was 11-year-old April Holley.
The information further alleged felony-murder special circumstances for burglary,
rape, sodomy and lewd and lascivious acts on a child under the age of 14.
(§ 190.2, subd. (a)(12).) Petitioner was charged with residential burglary (§ 459)
of the Holley residence and forcible rape (§ 261), lewd and lascivious acts on a
child under 14 (§ 288, subd. (b)), and sodomy (§ 286, subd. (c)), all of these
crimes also allegedly committed against April Holley. On April 11, 1992,
petitioner was convicted by a jury of all counts, and all special circumstances were
found to be true. On September 8, 1992, the jury returned a death verdict. The
trial court declined to modify the verdict (§ 190.4, subd. (e)), and sentenced
petitioner to death. Petitioner’s conviction was automatically appealed to this
court. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).)3 We affirmed the
judgment and sentence in petitioner’s appeal. (People v. Richardson, supra, __
Cal.4th at p. ___ [p. 98].)

3 To the extent it is necessary to refer to factual matters adduced at petitioner’s
trial, we cite the statement of facts in the related automatic appeal because it was
this same evidence the trial court was required to examine in evaluating whether to
grant petitioner’s motion. (§ 1405, subd. (f)(5).)
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As explained more fully in our opinion in the automatic appeal, the victim
was found dead in the bathtub of the residence she shared with her mother and
sister. Certain hair samples were recovered from debris in the bathtub and from
the victim’s clothing; some of these hairs were identified by prosecution experts as
consistent with petitioner’s hair. (People v. Richardson, supra, __ Cal.4th at
p. ___ [p. 16].)
On May 24, 2004, petitioner filed a motion pursuant to section 1405
seeking DNA testing of four pubic hairs identified in his motion as exhibits 4-A,
16-A, 16-B, and 16-C, which were admitted at petitioner’s trial. Two hair analysis
experts had testified for the prosecution. One of them, Steven O’Clair, opined that
exhibit 16-A, a pubic hair recovered from the debris in the bathtub where the
victim was found, was consistent with petitioner’s hair, as was exhibit 16-C,
another pubic hair removed from the bathtub. O’Clair also testified that exhibit 4-
A, a pubic hair from a towel stuffed into the bathtub drain, was consistent with
petitioner’s hair, as was exhibit 16-B, another pubic hair removed from the
bathtub. The second prosecution expert, Charles Morton, agreed that exhibits 16-
A and 16-C were consistent with petitioner’s hair. Morton, however, disagreed
with O’Clair’s conclusion that exhibits 4-A and 16-B were also consistent with
petitioner’s hair. Morton testified that exhibits 4-A and 16-B were consistent with
hair from the victim’s mother. Petitioner presented his own hair experts Stephan
Schliebe and Peter Barnett who disputed the conclusions of the prosecution
experts. (People v. Richardson, supra, ___ Cal.4th at p. ___ [p. 17].)
In his motion for DNA testing of the hair, petitioner noted that a number of
courts have approved the use of mitochondrial DNA (mtDNA) analysis on pubic
hair. He contended that he was entitled to an analysis of the four hair samples at
issue because the hairs were the only physical evidence connecting him to the
crime. He argued that the testing would “raise a reasonable probability that [his]
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verdict or sentence would have been more favorable” had such testing been
available at the time of his trial.
The prosecution argued that petitioner had failed to satisfy section 1405’s
requirements that the movant make a prima facie showing of the materiality of the
evidence sought to be tested, and had also failed to meet the threshold for
reasonable probability. (§ 1405, subd. (f)(4), (5).) The prosecution contended that
the prima facie case of materiality had not been made because “[i]f the pubic hairs
were tested and found not to have Petitioner’s DNA, that fact alone does not prove
Petitioner’s innocence because of the vast array of other evidence linking him to
the murder . . . . If DNA analysis reveals Petitioner as the DNA donor on the
pubic hairs, it will further inculpate him. If DNA testing excludes Petitioner as a
donor — the only other possibility — it will provide no new information.”
Similarly, the prosecution argued that the evidence supporting petitioner’s
conviction was such that, even if DNA testing revealed he was not the DNA donor
of the pubic hairs, there was no reasonable probability that he would have obtained
a more favorable result had the testing been available at the time of his trial.
At the hearing of petitioner’s motion, the trial court agreed with the
prosecution and denied the motion. Petitioner then filed the instant petition for
writ of mandate or prohibition. We issued an order to show cause.
II. ANALYSIS
A. Relevant Subdivisions of Section 1405
For our purposes, the relevant subdivisions of section 1405 are subdivisions
(a), (f), and (j). Subdivision (a) provides: “A person who was convicted of a
felony and is currently serving a term of imprisonment may make a written motion
before the trial court that entered the judgment of conviction in his or her case, for
performance of forensic deoxyribonucleic acid (DNA) testing.”
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Section 1405, subdivision (f) directs the trial court to grant the motion for
DNA testing if eight conditions are met. At issue are the fourth and fifth
conditions. Subdivision (f)(4) provides: “The convicted person has made a prima
facie showing that the evidence sought to be tested is material to the issue of the
convicted person’s identity as the perpetrator of, or accomplice to, the crime,
special circumstance, or enhancement allegation that resulted in the conviction or
sentence.” Subdivision (f)(5) requires the moving party to establish that “[t]he
requested DNA testing results would raise a reasonable probability that, in light of
all the evidence, the convicted person’s verdict or sentence would have been more
favorable if the results of DNA testing had been available at the time of
conviction. The court in its discretion may consider any evidence whether or not
it was introduced at trial.”
Section 1405, subdivision (j) authorizes appellate review of the order
granting or denying the motion exclusively through a “petition for writ of mandate
or prohibition filed by the person seeking DNA testing, the district attorney, or the
Attorney General. . . . In a noncapital case, the petition for writ of mandate or
prohibition shall be filed in the court of appeal. In a capital case, the petition shall
be filed in the California Supreme Court.”
Our disposition of this matter turns upon the meaning of these subdivisions.
As to section 1405, subdivision (j), we must determine the applicable standard of
review of the trial court’s ruling on a motion for DNA testing. We must also
determine the meaning of the materiality requirement in subdivision (f)(4) and
what constitutes a “reasonable probability” for purposes of subdivision (f)(5) of
section 1405.
B. The Standard of Review
The People argue that the correct standard of review in this case is for
abuse of discretion while petitioner contends that the trial court’s ruling should be
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reviewed for substantial evidence. The two cases cited by petitioner in support of
his claim, however, involve statutes very different from section 1405; in each of
those cases, evidence was presented to the trial court that the petitioner
subsequently attacked in a writ proceeding as insufficient to support the trial
court’s ruling. (Murray v. Superior Court (1955) 44 Cal.2d 611, 618 [review of
affidavit in support of civil arrest]; Sheard v. Superior Court (1974) 40
Cal.App.3d 207, 210-211 [review of affidavits in support of motion to quash
summons].) These opinions do not, therefore, support petitioner’s claim that
substantial evidence is the applicable standard of review for denial of a motion
under section 1405.4
What the statute requires us to review is whether the trial court correctly
determined that petitioner failed to establish that, “in light of all the [trial]
evidence,” the “requested DNA testing results would raise a reasonable probability
that . . . [petitioner’s] verdict or sentence would have been more favorable if the
results of DNA testing had been available at the time of conviction.” (§ 1405,
subd. (f)(5).) Because this determination is necessarily based upon the trial court’s
judgment — that is, its evaluation of the weight of trial evidence in relation to
DNA testing presumably favorable to defendant — its decision is a discretionary,
rather than a ministerial, one. (See Rodriguez v. Solis (1991) 1 Cal.App.4th 495,

4 In any event, petitioner is wrong if he believes that the substantial evidence
standard of review is more favorable to his arguments. Under that well-
established standard, the reviewing court “will not disturb the implied findings of
fact made by a trial court in support of an order . . . [and] [w]hen the evidence is
conflicting, it will be presumed that the court found every fact necessary to
support its order that the evidence would justify. So far as it has passed on the
weight of the evidence, its implied findings are conclusive.” (Murray v. Superior
Court, supra, 44 Cal.2d at p. 619.) We note, finally, that while petitioner
advocates the substantial evidence standard of review, his presentation of the
evidence violates that standard because he presents the evidence in the light most
favorable to his claim rather than to the trial court’s order.
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501-502 [“A ministerial act is an act that a public officer is required to perform in
a prescribed manner in obedience to the mandate of legal authority and without
regard to his own judgment or opinion concerning such act’s propriety or
impropriety, when a given state of facts exists. Discretion, on the other hand, is
the power conferred on public functionaries to act officially according to the
dictates of their own judgment”].) We conclude therefore that the standard of
review of a trial court’s ruling on a section 1405 motion is abuse of discretion.
Our conclusion is supported by the apparent intent of the Legislature in
enacting section 1405, as revealed by the legislative history, which was to provide
defendants with a narrowly circumscribed opportunity to develop new evidence in
preparation for a new trial motion based on newly discovered evidence. (Sen. Bill
No. 1342 (1999-2000 Reg. Sess.).) Not only does the purpose of section 1405
directly relate to new trial motions on this ground, but it is also analogous to
section 1181, subdivision 8, which authorizes such new trials where new evidence
has been discovered. There, as here, the moving party must fulfill certain
preconditions to warrant a new trial on this ground, including a showing that the
newly discovered evidence is material and is “ ‘ “such as to render a different
result probable on a retrial of the cause . . . .” ’ ” (People v. Delgado (1993) 5
Cal.4th 312, 328.) It is settled law that the standard of review for an order denying
a new trial motion based on newly discovered evidence is abuse of discretion.
(Ibid.)
“Although mandamus does not generally lie to control the exercise of
judicial discretion, the writ will issue ‘where, under the facts, that discretion can
be exercised in only one way.’ [Citations.]” (Robbins v. Superior Court (1985)
38 Cal.3d 199, 205.) “Mandate lies to control judicial discretion when that
discretion has been abused. [Citations.]” (State Farm etc. Ins. Co. v. Superior
Court (1956) 47 Cal.2d 428, 432.) “A trial court will be found to have abused its
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discretion only when it has ‘ “exceeded the bounds of reason or contravened the
uncontradicted evidence.” ’ [Citations.]” (IT Corp. v. County of Imperial (1983)
35 Cal.3d 63, 69.) Moreover, in a mandamus proceeding, in assessing whether the
trial court abused its discretion the “judgment or order of the lower court is
presumed correct . . . .” (Ace Beverage Co. v. Municipal Court (1993) 16
Cal.App.4th 703, 708, fn. omitted.)
C. “Materiality” and “Reasonable Probability”
As noted, the trial court agreed with the prosecution that the results of DNA
testing were not material and that, in any event, there was no reasonable
probability that petitioner would have obtained a more favorable result in light of
all the evidence adduced at trial against him, even assuming the testing showed the
hairs in question were not his. In order to evaluate whether the trial court abused
its discretion, we must first interpret the meaning of the materiality requirement in
section 1405, subdivision (f)(4) and the reasonable probability standard in section
1405, subdivision (f)(5).
“It is the duty of this court in construing a statute to ascertain and give
effect to the intent of the Legislature.” (People v. Freeman (1988) 46 Cal.3d 419,
425.) “To determine the meaning of a statute, we seek to discern the sense of its
language, in full context, in light of its purpose.” (People v. Cooper (2002) 27
Cal.4th 38, 45.)
Section 1405, subdivision (f)(4) requires the moving defendant to make “a
prima facie showing that the evidence sought to be tested is material to the issue of
the convicted person’s identity as the perpetrator of . . . the crime . . . .” The
statute does not define materiality. In other, analogous criminal law contexts —
those in which the defendant seeks to obtain information or contends that
information to which the defendant was entitled was withheld — the test for
materiality can impose a greater or lesser burden. For example, a defendant who
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seeks the production of personnel records of police officers that might disclose
complaints against the officers for excessive force or other conduct potentially
relevant to the defense must submit affidavits showing good cause for the
discovery and “setting forth the materiality thereof to the subject matter involved
in the pending litigation . . . .” (Evid. Code, § 1043, subd. (b)(3); see Pitchess v.
Superior Court (1974) 11 Cal.3d 531, 536-537 (Pitchess).) The materiality
standard is met if evidence of prior complaints is admissible or may lead to
admissible evidence. (People v. Memro (1985) 38 Cal.3d 658, 683.)
In contrast to this low threshold of Pitchess materiality is the showing
required of a defendant who contends that the prosecution withheld evidence that
was both favorable to the defendant and material either on the issue of guilt or
punishment. (Brady v. Maryland (1963) 373 U.S. 83, 87 (Brady).) “Evidence is
material under the Brady standard ‘if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different.’ ” (City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 7-
8.)
Because, as in the Pitchess context, the materiality requirement in section
1405, subdivision (f)(4) relates to the discovery of evidence, it too requires a lesser
showing of materiality by a defendant than, for example, in the Brady context,
where the claim involves a species of prosecutorial misconduct and asserts a due
process violation. This conclusion is buttressed by the fact that only a prima facie
showing of materiality is required by section 1405. We conclude, therefore, that
the moving defendant is required only to demonstrate that the DNA testing that he
or she seeks would be relevant to the issue of identity, rather than dispositive of it.
That is, the defendant is not required to show a favorable test would conclusively
establish his or her innocence. It would be sufficient for the defendant to show
that the identity of the perpetrator of, or accomplice to, the crime was a
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controverted issue as to which the results of DNA testing would be relevant
evidence.
This reading of section 1405, subdivision (f)(4) is supported by the
legislative history of section 1405. The analysis for Senate Bill No. 1342 notes
that the Attorney General preferred “that the standard for testing should be that it
is dispositive, not merely relevant, on the question of innocence. The author
believes that this proposed standard is too narrow and in those cases where it is not
dispositive of the evidence a court can decide its relevancy.” (Sen. Com. on
Public Safety, Analysis of Sen. Bill No. 1342 (1999-2000 Reg. Sess.) as amended
Mar. 30, 2000, p. 13.)
However, a prima facie showing of materiality does not, by itself, require
the trial court to grant the motion for DNA testing. Once this showing has been
made, section 1405, subdivision (f)(5) directs the trial court to further assess
whether, “in light of all the evidence,” the DNA results would raise “a reasonable
probability that . . . the convicted person’s verdict or sentence would have been
more favorable if the results of DNA testing had been available at the time of the
conviction.” We turn now to the meaning of the term “reasonable probability” in
this context.
“ ‘Generally, “[w]here the language of a statute uses terms that have been
judicially construed, ‘ “the presumption is almost irresistible” ’ that the terms have
been used ‘ “in the precise and technical sense which had been placed upon them
by the courts.” ’ ” ’ ” (People v. Lawrence (2000) 24 Cal.4th 219, 231.)
The parties agree that the term “reasonable probability” has been the
subject of prior judicial construction in other contexts relevant to our analysis.
Petitioner cites the use of the “reasonable probability” standard in connection with
claims of ineffective assistance of counsel (Strickland v. Washington (1984) 466
U.S. 668 (Strickland)) and the assessment of prejudice for state law error (People
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v. Watson (1956) 46 Cal.2d 818 (Watson)). Under Strickland, a defendant
asserting ineffective assistance of counsel must demonstrate “(1) that counsel’s
performance was deficient, i.e., that the representation fell below an objective
standard of reasonableness, and (2) that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result would have been more favorable to
defendant, i.e., a probability sufficient to undermine confidence in the outcome.”
(In re Ross (1995) 10 Cal.4th 184, 201.) Under the Watson standard, prejudicial
error is shown where “ ‘ “after an examination of the entire cause, including the
evidence” [the reviewing court] is of the “opinion” that it is reasonably probable
that a result more favorable to the appealing party would have been reached in the
absence of the error.’ [Citation.] ‘We have made clear that a “probability” in this
context does not mean more likely than not, but merely a reasonable chance, more
than an abstract possibility.’ [Citation.]” (Cassim v. Allstate Ins. Co. (2004) 33
Cal.4th 780, 800.)
We agree that in the context of the statute, the term “reasonable
probability” has the same meaning that it has in the Strickland and Watson
contexts. Seizing upon part of the Strickland formulation — “a probability
sufficient to undermine confidence in the outcome” (Strickland, supra, 466 U.S. at
p. 694) — petitioner contends that the reasonable probability requirement can be
satisfied by something less than showing a different, more favorable result. Not
so. “[A] defendant cannot establish a constitutional violation simply by
demonstrating that an alleged trial-related error could or might have affected the
jury. To establish that ineffective assistance of counsel violates the Sixth
Amendment, for example, a defendant must show a ‘reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’ [Citation.]” (Boyde v. California (1990) 494 U.S. 370, 380-381,
fn. 4, italics added.) Therefore, to prevail on a section 1405 motion, the defendant
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must demonstrate that, had the DNA testing been available, in light of all of the
evidence, there is a reasonable probability — that is, a reasonable chance and not
merely an abstract possibility — that the defendant would have obtained a more
favorable result.
In making this assessment, however, it is important for the trial court to
bear in mind that the question before it is whether the defendant is entitled to
develop potentially exculpatory evidence and not whether he or she is entitled to
some form of ultimate relief such as the granting of a petition for habeas corpus
based on that evidence. As the Ninth Circuit observed in an analogous decision,
“Obtaining post-conviction access to evidence is not habeas relief.” (Osborne v.
District Attorney’s Office for the Third Judicial District (9th Cir., Apr. 2, 2008,
No. 06-35875) __ F.3d ___ (2008 D.A.R. 4670, 4676) [defendant has limited due
process right to semen and two hairs for postconviction DNA testing].) Therefore,
the trial court does not, and should not, decide whether, assuming a DNA test
result favorable to the defendant, that evidence in and of itself would ultimately
require some form of relief from the conviction.
D. Application
Applying the foregoing principles to the case before us, we agree with
petitioner that he established that the DNA test would have been relevant to the
issue of the identity of the perpetrator.
We further conclude that the trial court did not abuse its discretion when it
denied petitioner’s motion because it “believe[d] that there was a substantial
amount of other evidence linking him to this crime,” a statement which, in context,
constitutes a finding that petitioner failed to establish the reasonable probability
requirement. Petitioner emphasizes that the hair evidence was the only physical
evidence linking him to the commission of the offenses against the victim. The
trial court, however, found that this evidence was not “conclusive” on the issue of
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guilt and that the defense substantially weakened whatever value the hair evidence
had through effective cross-examination of the prosecution’s experts and use of its
own experts. We cannot conclude that the trial court abused its discretion by so
finding.
On the first point, as defense counsel himself noted during his argument at
the hearing of his motion, the prosecution’s two experts, O’Clair and Morton,
could not even agree between themselves which of the pubic hairs was consistent
with petitioner’s hair. While O’Clair opined that four hairs, 4-A, 16-A, 16-B, and
16-C, were consistent with petitioner’s hair, Morton agreed only as to exhibits 16-
A and 16-C; in his opinion exhibits 4-A and 16-B were consistent with hair from
the victim’s mother. Even as the hair evidence was presented, then, it was clear
that it was far from definitive and subject to quite different interpretations from
equally qualified experts.
These points were driven home to the jury by effective cross-examination
in which, as the trial court also noted, “the defense did a good job of downplaying
the significance of hair evidence.” For example, the defense got O’Clair to
acknowledge that hair analysis involves “quite a bit of subjectivity”; that it was
not the same as fingerprint analysis; and that it was not uncommon for experts to
disagree. The prosecution’s second expert, Morton, was also forced to
acknowledge the limits of hair analysis on cross-examination when he testified
that the most that could be said about a hair sample was that it was “consistent”
with an individual’s hair and “could be from that individual.” He admitted he
could not say that the hair samples belonged to defendant. He, like O’Clair, also
conceded that hair analysis was a “subjective process” and two competent experts
looking at the same sample could reach different conclusions.
In addition to effectively cross-examining the prosecution’s hair analysis
experts, the defense’s two experts rejected the conclusion of the prosecution’s
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experts. Stephan Schliebe testified that the squalid condition of the bathroom
where the victim was murdered, and from which the hairs were collected, diluted
their value. He also pointed out that hair could easily be transferred from one
place to another. This latter observation was related to evidence that petitioner
had been a sometime visitor to the victim’s residence, the implication being that
any hair identified as consistent with his could have been deposited during an
earlier visit. Finally, contrary to the testimony of the prosecution’s experts,
Schliebe testified that none of the four hair exhibits in question, 4-A and 16-A
through 16-C, were consistent with petitioner’s hair. Additionally, a second
defense forensic expert, Peter Barnett, also testified that the four samples were not
consistent with petitioner’s hair.
Petitioner emphasizes probability testimony by the prosecution’s expert
O’Clair based on a study referred to as the Gaudette study. According to O’Clair,
this study indicated that the probability that pubic hair consistent with one
individual could be matched to another individual was 1 in 800. Petitioner claims
that the prosecutor mischaracterized this testimony to argue that the hair analysis
was more conclusive than indicated by the experts’ testimony.5 As petitioner
concedes, however, of the four experts, O’Clair was alone in his reliance on the
Gaudette study. Even the prosecution’s other expert, Morton, dismissed its
significance. The prosecutor’s reference to this evidence was not improper and, as
the jury was instructed, his argument was also not evidence. Moreover, the
defense vigorously disputed the significance of hair evidence arguing that “the

5 Petitioner also renews the claim he advanced in his automatic appeal that the
admission of this testimony was error, that the prosecutor’s use of the study in
closing argument was misconduct and generally attacks the use of hair analysis
evidence. This proceeding is not the proper vehicle in which to raise these claims,
which are recycled from petitioner’s appeal and which we have rejected there. We
do not address them further here.
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hair evidence in this case means absolutely nothing.” Finally, section 1405 itself
directs the trial court to examine the evidence, not the argument of counsel, in
determining whether the moving party has made the required reasonable
probability showing. We presume that the trial court did so and disregarded
counsel’s arguments.
In short, as the trial court observed, the hair evidence was, at most, simply
one piece of evidence tending to show guilt and it was fiercely disputed by the
defense to the point that it may well have had little significance in the jury’s
determination of guilt or sentence. By contrast, the evidence that petitioner was
the perpetrator was strong. As we observed in petitioner’s automatic appeal, this
evidence included, in addition to the hair evidence, “defendant’s statement to a
witness evincing awareness that the victim, whom he knew, was alone on the night
she was murdered; . . . defendant’s statements in the immediate aftermath of the
murder in which he either admitted killing the victim or revealed details about the
murder that had not been released to the public; . . . defendant’s flight from the
scene the day after the murder; . . . defendant’s shifting stories in statements he
made to the police culminating in an admission — quickly retracted — that he had
committed the murder; . . . defendant’s statement to a fellow inmate that he had
murdered Holley; . . . [and] Steven Brown’s subsequent attempt to commit a
similar crime against another victim.” (People v. Richardson, supra, ___ Cal.4th
at pp. ____ [pp. 2-3].)6
Petitioner attacks or minimizes the significance of each category of
evidence. As we observed at the outset, however, our role is not to review the
record of the trial de novo but to determine whether the trial court abused its

6 The prosecutor argued that Brown’s unsuccessful attempt to commit a similar
crime — the rape and drowning of a female victim — tended to show a common
plan and that the Holley murder had required two participants.
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discretion in denying the motion based on its assessment of the record.7 We
cannot find an abuse of discretion on the record before us. We believe that the
reason the Legislature required convicted persons to bring section 1405 motions
before the judge who presided over their trials was precisely because the trial
judge is in the best position to make the reasonable probability determination. Our
own assessment of the evidence for purposes of the automatic appeal demonstrates
to our satisfaction that the evidence against petitioner was compelling and
supported both his conviction and the death sentence. We are not persuaded that
the trial judge abused its discretion when, examining the same record, it
determined that petitioner had failed to satisfy the reasonable probability
requirement with respect to the jury’s verdict.
We find no more convincing his argument that DNA evidence, if produced,
might have caused at least one juror during the penalty phase to decline to vote for
the death penalty. Here, the jurors learned at the penalty phase that, in addition to
the brutal circumstances of the crimes of which they had just convicted him,
petitioner had forcibly raped a 16-year-old girl in concert with two others; had,
while in jail for that offense, forced a fellow inmate to perform sexual acts on him
and others; and committed battery on an eight-month-old infant by squeezing his
scrotum so hard the infant had to be hospitalized. In light of this additional
evidence, we are not persuaded that the trial court abused its discretion in
impliedly finding it is not reasonably probable that the DNA evidence would have
altered the outcome of the penalty phase.

7 Contrary to petitioner’s suggestion, there is no requirement in section 1405 that
the trial court make on-the-record findings to support its ruling. Petitioner’s
further claims that the DNA testing should have been ordered because the results
might be useful to him on habeas or for purposes of executive clemency were not
made to the trial court. In any event, section 1405 does not require the trial court
to order DNA testing because it might be helpful in these contexts but only where
the conditions of subdivision (f) are fulfilled.
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III. DISPOSITION
The order to show cause is discharged and the petition is denied.
MORENO, J.
WE CONCUR: KENNARD, J.
BAXTER,
J.
WERDEGAR,
J.
CORRIGAN,
J.

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DISSENTING OPINION BY CHIN, J.

The majority’s interpretation of Penal Code section 1405 (section 1405) is
reasonable. I do not believe, however, that it is the interpretation the Legislature
intended. Accordingly, I dissent.
Section 1405 provides a means for prison inmates convicted of a felony to
move in the trial court for and, on a proper showing, obtain forensic
deoxyribonucleic acid (DNA) testing of physical evidence. (See § 1405, subd.
(a).) The obvious purpose of this statute is to enable inmates to try to establish
their innocence by use of modern, sometimes highly probative, DNA testing. To
obtain the testing, the inmate must satisfy certain requirements, including, as
relevant to the issue before us, that (1) the evidence sought to be tested is
“material” to the question of the inmate’s identity as the culprit (or one of the
culprits); and (2) that “[t]he requested DNA testing results would raise a
reasonable probability that, in light of all the evidence, the convicted person’s
verdict or sentence would have been more favorable if the results of DNA testing
had been available at the time of conviction.” (§ 1405, subd. (f)(4), (5).)
Four years ago, in May 2004, petitioner moved for DNA testing of four
pubic hairs that were admitted as evidence at his trial. Although the evidence was
disputed, the prosecution argued vigorously to the jury that the hairs belonged to
defendant and, indeed, that the hairs constituted “very, very compelling evidence”
of petitioner’s guilt. After petitioner’s motion was thoroughly litigated in the trial
1

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court, that court denied testing. In its ruling, however, it acknowledged that the
hair evidence “was argued by the prosecutor and contested and a big issue was
made of it.”
After the trial court denied the testing, petitioner sought review by filing
this writ proceeding. He followed the proper procedure to seek appellate review.
(See § 1405, subd. j).) In order to review the trial court’s ruling meaningfully, we
issued an order to show cause and made this matter a companion case to the
automatic appeal of petitioner’s death judgment. (See People v. Richardson (May
22, 2008, S029588) __ Cal.4th __.) Doing so was necessary to enable this court to
review the massive trial record, which, in turn, was necessary to determine
whether to uphold or overturn the ruling denying testing. The parties then filed a
return to the order to show cause and a reply to that return. The question has been
argued in this court. In today’s opinions — both in the automatic appeal and in
this writ proceeding — the majority does a commendable job of analyzing all the
relevant evidence and marshaling the facts in order to review the trial court’s
ruling. For the reasons the majority states, I agree that, viewed in isolation, it is
unlikely that hypothetical results of the hypothetical testing of the pubic hairs
could raise a reasonable probability that the result would have been more
favorable to petitioner had the results been available at trial.
The problem is that all of this litigation, both in the trial court and in this
court, all of this effort, by the parties and this court, all of this analysis and
examination of a massive record, has been done solely to determine whether the
hairs should be tested. This four-year effort has undoubtedly been far more
expensive — in terms of monetary costs, passage of time, and expenditure of
judicial resources — than if the hairs simply had been tested four years ago. If the
trial court had ordered the testing, or the parties simply agreed to it, then the
results would long since have been known. If the testing confirmed that the hairs,
2

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or some of them, were defendant’s, it would provide additional evidence of his
guilt, and any doubts on this point would have been laid to rest. If the testing
showed that the hairs belonged to one of the other possible suspects, or possibly an
unknown person or persons, then the parties and judiciary could consider the
significance of concrete results of actual testing rather than make abstract
decisions regarding hypothetical results of hypothetical testing.
Moreover, today’s opinion is not necessarily the end of the road. As I
noted, viewing the hair evidence in isolation, it appears petitioner failed to satisfy
a rigorously applied reasonable probability test. But the hair evidence need not
always be viewed in isolation. Hypothetically, petitioner might be able to generate
other evidence in the future that casts doubt on his guilt or weakens the
significance of other prosecution evidence. It is possible that hypothetical
favorable results of the requested DNA evidence, in combination with other facts
that may be developed in the future, could satisfy the reasonable probability test.
If that were to occur, I suspect petitioner would be allowed to renew his request
for the testing.
I find it hard to believe that, in enacting section 1405, the Legislature
intended to create a process by which deciding whether to order DNA testing will
often, perhaps routinely, be more expensive than the testing itself. I believe
instead that in creating the materiality and reasonable probability requirements of
section 1405, subdivision (f)(4) and (5), the Legislature intended to create a
relatively straightforward and reasonably objective method of determining
whether to order DNA testing without requiring testing in all circumstances. The
difficulty in this case, I recognize, lies in the precise language of section 1405,
subdivision (f)(5). Read literally, as the majority does, the statute does seem to
require all of the hypothetical judgments and the thorough analysis the trial court
and the majority have undertaken. But the statute does not compel a literal
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interpretation. “In general, it is settled that the language of a statute should not be
given a literal meaning if doing so would result in absurd consequences that the
Legislature did not intend. To this extent, therefore, intent prevails over the letter
of the law and the letter will be read in accordance with the spirit of the
enactment.” (In re Michele D. (2002) 29 Cal.4th 600, 606.)
The Legislature certainly did not intend to require DNA testing routinely in
all cases. This is understandable and explains the purpose behind the materiality
and reasonable probability requirements. But I also believe the Legislature did not
intend to make litigation over whether to conduct testing more time-consuming
and costly than the testing itself. It must have intended courts to interpret the
reasonable probability test in a way that avoids such an absurd result. We should
interpret section 1405 in context. As the majority correctly notes (maj. opn., ante,
at p. 12), that section does not involve a determination whether to grant relief on
some hypothetical habeas corpus petition after testing, which would require
rigorous examination of all the evidence and all the relevant facts, but merely
whether to order testing in the first place. Section 1405, subdivision (f)(5)’s
reasonable probability test should be interpreted with this in mind.
I would interpret section 1405 to require only a preliminary assessment of
whether testing results would raise a reasonable probability of a different outcome.
The trial court and, ultimately, a reviewing court, should base this preliminary
assessment on the evidence and arguments set forth in the motion for testing and
any opposition, and should not be obligated to review the entire trial record and
reach a definite conclusion regarding the ultimate issue whether hypothetical test
results would establish the petitioner’s innocence. When, as here, the evidence
was presented at trial, this preliminary assessment would be satisfied if the
evidence sought to be tested played a significant role at trial, and the testing results
could potentially contradict the prosecution theory at trial regarding that evidence.
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This would normally be an easy ruling to make and to review for abuse of
discretion. Ordering the testing in this situation would be consistent with the
legislative intent not to permit testing routinely but only when the evidence was
truly important to the outcome. It would also at least minimize the occasions in
which determining whether to order testing is more expensive and time-consuming
than the testing itself.
In this case, the hairs sought to be tested were admitted at trial. The
prosecution theory was that the hairs belonged to petitioner and, indeed, that they
provided compelling evidence of his guilt. As the trial court acknowledged, the
evidence played a prominent role at trial. This should have been enough to satisfy
the requirements of section 1405, subdivision (f)(4) and (5). No one disputes that
the remaining requirements of that statute have been satisfied; accordingly, the
trial court should have ordered the testing.
Because we are interpreting a statute, the Legislature can always change it.
If it did not intend to erect as high a barrier to DNA testing as the majority
demonstrates it erected, it can, and should, amend the statute. It might, for
example, simply state that the materiality and reasonable probability requirements
are satisfied (1) if the evidence sought to be tested was admitted and played a
significant role at trial, and the testing results could potentially contradict the
prosecution theory at trial regarding that evidence; or (2) if the evidence sought to
be tested was not admitted at trial but the trial court concludes the evidence would
have played a significant role at trial if it had been admitted, and the testing results
could potentially provide significant evidence exonerating the defendant.
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For these reasons, I would grant the relief petitioner seeks and order the
hairs to be subjected to DNA testing to determine whether they were, in fact,
defendant’s and, if not, whose they might have been.
CHIN,
J.
I CONCUR:
GEORGE, C.J.
6

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

Name of Opinion Richardson v. Superior Court
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S127275
Date Filed: May 22, 2008
__________________________________________________________________________________

Court:

Superior
County: Tulare
Judge: William Silveira, Jr.

__________________________________________________________________________________

Attorneys for Appellant:

Richard Jay Moller and Karen Kelly, under appointments by the Supreme Court, for Petitioner.

__________________________________________________________________________________

Attorneys for Respondent:

No appearance for Respondent.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez, Eric L. Christoffersen, Lloyd G.
Carter and Kathleen A. McKenna, Deputy Attorneys General, for Real Party in Interest.

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

Richard Jay Moller
So’Hum Law Center
P.O. Box 1669
Redway, CA 95560-1669
(707) 923-9199

Kathleen A. McKenna
Deputy Attorney General
2550 Mariposa Mall, Room 5090
Fresno, CA 93721
(559) 477-1670

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Original proceeding. In this case, which is related to the automatic appeal in People v. Richardson, S029588, the Court issued an alternative writ limited to the following claim: Should petitioner's motion for DNA testing pursuant to Penal Code section 1405 be granted?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:	Cross Referenced Cases:
Thu, 05/22/2008	44 Cal.4th 385b original opinion 43 Cal.4th 1040 original opinion	S127275	Writ (AA - original non-Habeas)	complete	PEOPLE v. RICHARDSON (CHARLES) (S029588)

Disposition
Mar 16 2005	Case Consolidated (see lead case)

Dockets
Aug 23 2004	Petition for writ of mandate/prohibition filed (AA)   by attorney Richard Jay Moller. ( 63 pp. - excluding attached appendix)
Aug 23 2004	Letter sent to:   respondent requesting informal response; due 9/22/2004. Petitioner will then have 15 days in which to serve and file a reply to the informal response.
Aug 25 2004	Filed:   Amended proof of service of petition for writ of mandate/prohibition.
Sep 20 2004	Informal response filed (AA)   by Real Party in Interest to petition for writ of mandate/prohibition. (23 pp.)
Oct 7 2004	Reply to informal response filed (AA)   by attorney Richard Jay Moller. (perm. - 16 pp.)
Mar 16 2005	Order to show cause issued   Respondent is directed to vacate its order denying petitioner's motion for DNA testing pursuant to Penal Code section 1405 and to issue a new order granting the motion or, in the alternative, to show cause in this court, when the matter is placed on calendar, why the relief sought in the petition should not be granted. The return is to be filed on or before April 15, 2005. This cause is consolidated with the appeal in People v. Charles Keith Richardson, S029588, for consideration and decision. Brown, J., was absent and did not participate. (votes: George, C.J., Kennard, Baxter, Werdegar, Chin and Moreno, JJ.)
Mar 16 2005	Case consolidated - all subsequent events to be docketed in:   Automatic Appeal: PEOPLE V. CHARLES KEITH RICHARDSON - S029588
Nov 14 2007	Previously consolidated cases ordered severed   Review in Richardson v. Superior Court (People), S127275, is severed from review in People v. Charles Keith Richardson, S029588. The Clerk of the Court is directed to reopen case number S127275 for determination of the cause by this court.
Dec 27 2007	Oral argument letter sent   advising counsel that the court could schedule this case for argument as early as the February 2008 calendar, to be held the week of February 4, 2008, in Sacramento.
Feb 6 2008	Case ordered on calendar   to be argued Thursday, March 6, 2008, at 1:30 p.m., in San Francisco
Feb 27 2008	Received:   appearance sheet from R. Jay Moller, indicating 30 minutes for oral argument for petitioner.
Mar 6 2008	Cause argued and submitted
May 21 2008	Notice of forthcoming opinion posted
May 22 2008	Opinion filed: OSC discharged; mandate denied   The order to show cause is discharged and the petition is denied. opinion by Moreno, J. -----joined by Kennard, Baxter, Werdegar and Corrigan, JJ. Dissent by Chin, J. -----joined by George, C.J.
Jun 13 2008	Rehearing petition filed   by appellant (1,726 words) (note: envelope indicates petition was mailed via priority mail June 6, 2008 and remailed on June 11, 2008. Petition was received at the court this date.)
Jun 24 2008	Letter sent to:   counsel re finality.
Jun 25 2008	Letter sent to:   counsel advising that June 24, 2008 letter was sent in error. Petition for rehearing, not previously docketed, is pending. The docket has been corrected this date to reflect that filing.
Jun 25 2008	Time extended to consider modification or rehearing   The time for granting or denying rehearing in the above-entitled case is hereby extended to and including August 20, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first. This order is entered nunc pro tunc as of June 20, 2008, due to clerical error.
Jul 16 2008	Rehearing denied   The opinion is modified on the court's own motion. The petition for rehearing is denied. Chin, J., is of the opinion the petition should be granted.
Jul 16 2008	Opinion modified - no change in judgment
Jul 16 2008	Letter sent to counsel: opinion now final