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The PEOPLE, Plaintiff and Respondent, v. Harold GIVENS, Defendant and Appellant.
Harold Givens appeals from his conviction of rape (Pen.Code, § 261), forcible oral copulation (§ 288a, subd. (c)), and burglary (§ 459).1 The principal issue raised on appeal concerns the admissibility of evidence purporting to quantify DNA test results using a statistical estimate of probability we shall refer to as the “unmodified product rule.” 2 We hold that this use of the unmodified product rule is generally accepted in the relevant scientific community, and, except for a modification of the sentence, affirm.
BACKGROUND
Appellant was charged with four counts of burglary, four counts of rape, and one count of forcible oral copulation between January of 1991 and March of 1992. Prior to the trial, the court held a hearing pursuant to Evidence Code section 402 to determine the admissibility of the results of deoxyribonucleic acid (DNA) testing. The DNA evidence was used at a jury trial which concluded on December 15, 1995. The jury found appellant guilty of all charges.
The Crimes
The case arises out of the rape of four women in Oakland and Berkeley in 1991-1992. Each woman was acquainted with appellant. Each rape was preceded by a burglary. Police investigating the rapes noted the common elements of a break-in by a man wearing a ski mask and gloves. Eventually, police obtained a warrant and searched appellant's person and home. In addition to samples of appellant's blood, hair and saliva, police obtained a pair of tennis shoes, a pry bar, a ski mask, a dark blue knit sweatshirt, and a pair of gray “Ben-Davis” type work pants. A summary of the evidence pertaining to each victim follows.
Deborah C.
Deborah C. was the mother of appellant's girlfriend. In the early morning hours of January 30, 1991, she was awakened by the sound of someone entering her house with a key. She went into the hallway and encountered an intruder wearing a ski mask and gloves. He lunged at her, overpowered her, and raped her. Afterwards, he asked her for money, but she told him she had none.
After the intruder left, Deborah C. went to the home of her friend. The friend testified that Deborah C. told her that the rapist was her daughter's friend. Later, when Deborah C. returned from the police station and hospital, she repeated that appellant was the rapist. At trial, she identified appellant as the intruder, although she had not been sure of her identification at the preliminary hearing.
An emergency room physician took tissue samples, fluid samples, and vaginal swabs from Deborah C., using a standard evidence collection kit. A police evidence technician took a sheet and the victim's panties to the police department property room. Semen was found on the vaginal swab. Using the Polymerase Chain Reaction (PCR) technique of preparing the DNA evidence, Charles Alan Keel, a forensic scientist for the Oakland police, was able to classify the DNA as type 1.1,3, which was consistent with appellant's DNA type. This classification eliminated 97 percent of the population as potential donors of that semen.
The evidence was sent to the FBI laboratory in Virginia for more discriminating DNA testing. The FBI lab conducted Restriction Fragment Length Polymorphism (RFLP) tests on the evidence. The DNA from the vaginal swabs matched appellant's DNA. After performing statistical probability calculations, the FBI reported that the probability of selecting an individual from the African-American population with the same DNA profile as appellant was 1 in 500 million.
Bonnita H.
Bonnita H. knew appellant as the boyfriend of her daughter's roommate. On April 8, 1991, she was awakened by a man straddling her in her bed. He was wearing gloves and a ski mask, and holding something sharp in his hand. The intruder raped her, then orally copulated her. He allowed her to go to the bathroom, where she grabbed a large towel and placed it between her legs. He made a comment about her going to church the previous day and said that he had followed her. He told her he entered her apartment with a key. He looked through her purse for money, but found none.
After the assailant left, Bonnita H. waited until dawn to go to the nearest telephone to call the police. The police found a previously lost key on the front steps. Bonnita described the man as an African-American man in his mid-20's, about 5 feet, 9 inches, and 170 pounds. She said he was wearing a dark ski mask, gray pants, a dark sweater, and dark wool gloves. She could not positively identify appellant at trial because the assailant had been wearing a mask. When police showed her a photo line up, she recognized appellant, but stated that he did not match the description of her assailant.
An emergency room physician collected vaginal, rectal, and oral specimens using a standard evidence collection kit. A police evidence technician collected the towel used after the rape. Sperm and epithelial cells, which compose the lining of the mouth and vagina, were found on the ski mask taken from appellant's home. Sperm was found on the vaginal swabs and the towel. PCR testing on the cells taken from the mouth area of the ski mask established a mixture of type 1.1,3 cells and type l.3,4 cells. Bonnita H., was a type 1.3,4, while appellant was a type 1.1,3. PCR testing on the vaginal swabs determined that the semen donor was type 1.1,3, consistent with appellant's DNA type. This type is present in only 3 percent of the population.
Cuttings from the towel were sent to the Cellmark lab for RFLP testing. The small amount of DNA available from the towel for testing limited the information available from that item. Testing determined that the DNA from the towel was consistent with the pattern of appellant's DNA, and that it could be expected to occur in 1 out of every 30 African-Americans. The report also gave estimates for how often this type would be found in Caucasians and Hispanics.
The FBI performed RFLP testing of cells from the mouth area of the ski mask seized from appellant's home and determined that the DNA of the cells matched the DNA type of Bonnita H. The probability of randomly selecting an individual from the African-American population with the same DNA profile as Bonnita H. was 1 out of 13,000 individuals. The lack of a finding of semen, as had been detected in the PCR testing was explained as being a result of the small amount of material available for testing. Semen from the vaginal swabs was consistent with appellant's type, and the probability of randomly selecting an unrelated individual with the same DNA profile was one in 7,000. Semen collected from the towel matched appellant's DNA, but with the small amount of information available, yielded a random probability of one in 140.3
Lisa M.
Appellant's home was on the corner of the street where Lisa M. lived. Lisa M. had testified at the preliminary hearing, but refused to testify at trial. Keisha Rollins, a friend who lived in the same building as Lisa, testified about a conversation shortly after the rape. Rollins also knew appellant because her aunt was married to a relative of appellant's. On December 17, 1991, Lisa M. called Rollins, sounding very frightened. Rollins went down to Lisa M.'s apartment and found her crying and upset. Rollins called 911, and Lisa M. told her someone had broken in and raped her. Lisa M. was taken to a hospital and examined. Within three days of the rape, Lisa M. told Rollins that appellant was the one who raped her. Police showed Lisa M. a photo lineup containing appellant's picture in January of 1992. She identified the photo of appellant as the man who lived on the corner and said he fit the general description of her assailant.
A police evidence technician collected Lisa M.'s torn clothing, her robe and the sheets. The technician found a tire propped under one window and pry marks on the window. Semen was found on vaginal swabs taken from Lisa M., as well as on the robe and bed sheet. PCR testing classified the DNA as type 1.1,3, the same type as appellant.
RFLP testing at Cellmark labs showed that the DNA type on the sheet was consistent with appellant, and had a probability of occurring in 1 out of every 1.2 million African-Americans. The FBI testing of the material from the vaginal swab showed a match to appellant's DNA type, and a random probability of less than 1 in 500 million.
Lanita M.
Lanita M. was the daughter of Bonnita H., and the roommate of appellant's girlfriend. On March 30, 1992, she was at home with her five-week-old daughter and three-year-old son. She awakened sometime after 2 a.m. to find a man sitting on her bed with his hand over her mouth. He was wearing gloves and a dark mask with holes for the eyes and mouth. He threatened to kill her and the children if she screamed. The assailant took her downstairs and raped her. He asked her for money, but found none. After he left, Lanita called the police.
Although she could not positively identify appellant, she stated that her assailant was African-American, was wearing the same type of clothing that appellant usually wore, and was the same size and build. The clothing included Ben Davis pants, a jacket like appellant would wear, and white Converse shoes. Police found a shoe print on a kitchen chair under the window. The screen had been removed from the outside of the window and there were pry marks on the frame. The shoe print matched the size and pattern of appellant's shoe, but there was insufficient detail to identify or exclude it as having been made by appellant.
PCR testing classified the DNA on the vaginal swab as 1.1,3, consistent with appellant. Only three percent of the population matched that DNA type. RFLP testing of semen found on the vaginal swab matched appellant's DNA. The probability of randomly selecting an unrelated individual from the African-American population with the same DNA profile was less than one in 500 million.
The Expert Testimony
On November 14, 1995, the court held a hearing to determine the admissibility of the DNA evidence under People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240.4 Dr. Bruce Budowle and Dr. Edward Blake testified as to the reliability and general acceptance of the scientific methods used to analyze DNA evidence. Ultimately, evidence of the results of PCR and RFLP testing, including the statistical calculation of probabilities, was introduced at trial.
At the trial, Dr. Robin Cotton, director of Cellmark Laboratory, testified as to the procedures used in conducting RFLP testing on various items of evidence. She described the statistical method used to determine the probabilities that someone other than appellant contributed the DNA extracted from the evidence. She stated that the statistics were obtained by analyzing DNA segments and multiplying the chance of a particular DNA segment occurring in the relevant population times the chance of the next segment occurring in the population. She used a population sample that was compiled by Cellmark. She confirmed that the DNA extracted from the evidence matched appellant's DNA type.
FBI Agent, Audrey Lynch, testified that the FBI lab also performed RFLP tests on evidence from the Oakland crime lab. She reviewed the results of the testing done by the Oakland Police and Cellmark and determined that all results were consistent. The material taken from the items of evidence matched appellant's DNA type.
Charles Alan Keel, a forensic scientist, was qualified as an expert in serology and DNA analysis. He testified about the steps he took to perform the PCR analysis on the items of evidence taken from appellant and the victims. He described the results of his testing item by item, and determined that the semen that could be identified matched appellant's DNA pattern.
The Defense Case
After the prosecution rested, the defense recalled the police sergeant who had interviewed the victims. The witness stated that Deborah C., Bonnita H., and Lisa M. never identified appellant as the rapist, even after being shown photographs. When the witness again showed Bonnita H. a picture of appellant, she stated that it was Harold, the boyfriend of her daughter's ex-roommate. However, she continued “I don't believe that Harold is the person who assaulted me in my house. He is too short and [his] shoulders are too thick.” Lisa M., after looking at a picture of appellant in a photo lineup said that appellant fit the same general description of her assailant. Although Lisa M. had stated that appellant, the man who lived on the corner, may have been the rapist, she also suggested a couple of other suspects, one of whom lived in Sacramento. After this examination, the defense rested.
The Verdict
The jury retired to deliberate in the afternoon of December 14, 1995. The jury returned verdicts of guilty of all charges on the following morning. Appellant was sentenced to a total of 45 years, 4 months in prison. He filed a timely notice of appeal.
DISCUSSION
I. Error In Allowing Testimony of Results of Unmodified Product Rule Calculations
Appellant argues that the trial court erred in allowing the People's experts to state their findings regarding DNA test results in terms of the unmodified product rule because the scientific community disagrees on the validity of that method of statistical analysis of DNA test results, as reflected in the holding in People v. Barney (1992) 8 Cal.App.4th 798, 811, 10 Cal.Rptr.2d 731.
Background Of DNA Typing
As explained in more detail in People v. Axell (1991) 235 Cal.App.3d 836, 1 Cal.Rptr.2d 411, DNA is “a fundamental material which determines the genetic properties of all living things.” (Id. at pp. 844-845, 1 Cal.Rptr.2d 411.) The Axell court described the DNA molecule as having a spiral staircase structure, with “base pairs” consisting of combinations of four chemicals which form the steps of the staircase. The order of the base pairs determines the various genetic traits of individuals. Aside from identical twins, no two humans have exactly the same sequences in all base pairs. (Id. at p. 845, 1 Cal.Rptr.2d 411.) Most DNA does not vary from person to person, and “[t]hose portions [of DNA] are responsible for shared traits such as arms and legs.” (People v. Barney, supra, 8 Cal.App.4th 798, 806, 10 Cal.Rptr.2d 731.) Other specific regions of the DNA molecule have variable sequences of base pairs, which account for such variable traits as facial characteristics. These variable regions are called “polymorphic loci” or “polymorphic sequences.” (People v. Axell, supra, 235 Cal.App.3d 836, 845, 1 Cal.Rptr.2d 411.) A process of isolating and comparing those variable sequences of the DNA makes it possible to identify different individuals.
The process of using DNA to identify the perpetrator of a crime may be divided roughly into three steps: (1) processing the DNA material; (2) identifying a match between the material and a known sample; and (3) assessing the significance of the match. (People v. Barney, supra, 8 Cal.App.4th 798, 811, 10 Cal.Rptr.2d 731.) According to testimony in the instant case, the PCR process is a technique used to prepare small amounts of DNA for testing. PCR enables the scientist to start with a small amount of DNA and quickly make millions of copies of the original sequence to allow immediate testing, as well as to conserve the material for future testing. Once the DNA is prepared by the PCR process, the steps of matching and interpreting the statistical significance of the match are similar to the steps taken in the RFLP method. PCR is a technique which is used to generate data, and which allows databases to be easily compiled. The product rule, a statistical estimate of the frequency of a particular DNA profile in the population, is used to calculate probabilities when utilizing the PCR technique.
In RFLP analysis, the first step involves the use of restriction enzymes to recognize a specific sequence of base pairs and cut the DNA into fragments. The fragments are arranged, through a number of steps explained in detail in Barney, into eight bands, or four sets of two bands each. (8 Cal.App.4th at p. 809, 10 Cal.Rptr.2d 731.) In the second step, the bands from the samples taken from the victim, suspect and crime scene are compared to determine whether there is a match. (People v. Axell, supra, 235 Cal.App.3d at pp. 836, 846, 1 Cal.Rptr.2d 411.) The more pairs of bands a scientist can isolate and examine, the more certain is the match to a known sample. The third step involves an assessment of how frequently an entire pattern of bands will be found in the population. This calculation of probability utilizes principles of population genetics and involves comparing the known sample to a data base of blood samples. (Id. at p. 847, 1 Cal.Rptr.2d 411.) Both the FBI and the Cellmark labs calculated how frequently the particular bands occurred in a target population in the instant case. The frequencies for each set of two bands are multiplied, and the resulting numbers are multiplied together to determine the product, or total frequency with which the particular DNA pattern occurs in the relevant population. (People v. Barney, supra, 8 Cal.App.4th 798, 809, 10 Cal.Rptr.2d 731.) This statistical method, known as the unmodified product rule, “produces extremely small match probabilities․” (Id. at p. 810, 10 Cal.Rptr.2d 731.) The court in Barney held that this use of the unmodified product rule was not, at that time, a generally accepted scientific technique.
Evidence at the Kelly Hearing
People v. Barney (1992) 8 Cal.App.4th 798, 10 Cal.Rptr.2d 731 and People v. Axell, supra, 235 Cal.App.3d 836, 1 Cal.Rptr.2d 411, verified that the first two steps of the RFLP form of DNA analysis are generally accepted. (See also People v. Wallace (1993) 14 Cal.App.4th 651, 658, 17 Cal.Rptr.2d 721 [Barney concluded Kelly test was met as to processing and matching steps].) Although the prosecutor in the instant case covered all steps of DNA analysis, he aimed his presentation at the third step, that of statistical calculation of probabilities, which had been criticized in Barney.5 The prosecutor produced two witnesses, Dr. Bruce Budowle, to testify about PCR and RFLP testing, and Dr. Edward Blake to testify about PCR testing.
Dr. Blake, owner of Forensic Science Associates (FSA), a private physical evidence consulting firm, served as a consultant to the Oakland Police Department's crime laboratory.6 The court found he was qualified as an expert in the field of forensic DNA typing. He testified regarding PCR markers that he used in the battery of tests provided by FSA. He was not aware of any published articles that undermined the validity of any form of PCR DNA testing. Dr. Blake had reviewed the work actually done in the instant case by Charles Allan Keel of the Oakland Police Department. In his opinion, the procedures employed by Keel were the proper procedures, as employed by those in the relevant scientific community.7
Dr. Budowle, Chief of Forensic Science Research at the FBI Academy in Quantico, Virginia, is involved in research and development of methods of evaluating biological evidence. He was an expert witness in People v. Howard, the companion case to People v. Barney (1992) 8 Cal.App.4th 798, 10 Cal.Rptr.2d 731. Dr. Budowle testified that he had not personally examined the DNA case work done in the instant case. He stated, however, that Cellmark and the FBI laboratories still perform RFLP testing in the same way as had been approved by the court in the Howard case. There was no evidence that contradicted the prosecutor's showing that the initial steps of the PCR analysis and the RFLP analysis met the Kelly requirements.
Addressing the main issue in the instant case, Dr. Budowle explained that the question being answered by the statistical calculations is “assuming that the DNA did not come from the suspect, what's the chance of someone else out there of a population ․ being the source of the evidence?” The prosecutor asked Dr. Budowle to explain how the FBI conducts tests to ensure the validity of the application of the product rule. The witness responded with an analogy to a deck of playing cards, stating that the odds of drawing the ace of diamonds from the deck are one in 52. If you put the card back, shuffle, and draw again, the odds are still one in 52, because the cards are independent of each other. Dr. Budowle explained that, using the unmodified product rule, the odds of drawing the ace of diamonds followed by the ace of clubs are one in 52, times one in 51, which equals one in 2652. He then explained that this result can be confirmed empirically by shuffling a deck of cards, pulling out two cards, recording them, and repeating that process thousands of times. This empirical test would confirm the independence of the cards and the accuracy of the probability estimate. Through the use of computers, the FBI is able to construct a “DNA deck” of markers carried by the people in the sample, “shuffle” it, and verify the independence of each of the markers. If a result is noted that does not fit the expectation of independence, the FBI scientists may examine the markers specifically to determine the impact on a given estimate of probability. It was this application of the product rule to DNA evidence that was found unacceptable by the court in Barney.
Post-Barney Developments Have Validated Use of the Unmodified Product Rule
In referring to a 1992 report on DNA by the National Research Council (NRC) committee, the Barney court had noted that the Council acknowledged the existence of a “ ‘substantial controversy’ ” concerning present methods of statistical analysis. (People v. Barney, supra, 8 Cal.App.4th 798, 816, 10 Cal.Rptr.2d 731.) Barney's discussion of the controversy was based, in large part, on a 1991 issue of the journal Science, which presented competing articles on this point. One article, authored by Richard Lewontin and Daniel Hartl, attacked the reliability of DNA statistical evidence, while the second article, authored by Ranajit Chakraborty and Kenneth Kidd, contended that the problems perceived by Lewontin and Hartl were trivial. (Id. at pp. 814-815, 10 Cal.Rptr.2d 731.) Barney described an alternative method of calculation, proposed in the NRC report, and known as the interim ceiling rule. This approach permits use of the product rule, but proposes an “interim ceiling frequency” approach, which places a limit on the frequency with which each portion of the DNA can be said to occur in separate racial or ethnic groups. The interim ceiling principle uses the highest frequency with which a particular fragment of DNA occurs in each of at least three major racial groups, or a 10 percent rate of occurrence, whichever is greater. (Id. at pp. 821-822, 10 Cal.Rptr.2d 731; see also National Research Council, The Evaluation of Forensic DNA Evidence, Committee on DNA Forensic Science: An Update (National Academy Press 1996) p. 35 [hereafter, “NRC Update”].) 8 Subsequently, in People v. Taylor (1995) 33 Cal.App.4th 262, 40 Cal.Rptr.2d 132, Division Four of this court held that the modified (or interim) ceiling method of calculating statistical frequencies is generally accepted in the scientific community.
Dr. Budowle stated that Dr. Eric Lander, a member of the NRC committee that produced the 1992 report, had been critical of certain aspects of the statistical calculations used in assessing DNA data. In 1994, Drs. Budowle and Lander subsequently co-authored an article in the journal Nature, entitled “DNA Fingerprinting Dispute Laid to Rest.” 9 (Lander and Budowle, DNA Fingerprinting Dispute Laid to Rest (Oct. 27, 1994) Nature, vol. 371, pp. 735-738.) The Nature article describes Dr. Lander as “an early and vigorous critic of the lack of scientific standards․” The article recognized the existence of an academic debate about population genetics issues, but concluded that the debate was “rooted in a misunderstanding of the NRC report and is, in any case, of no practical consequence to the courts.” Dr. Budowle explained that Dr. Lander had previously cited a need for additional information. Dr. Budowle stated that the FBI has now complied and published substantial databases, and that the use of the unmodified product rule is no longer in question. In the joint article, Lander and Budowle stated that the ceiling principle, which was “unabashedly conservative” was never meant to be the exclusive method of assessing probabilities. “Expert witnesses were still free to provide their statistical ‘best estimate’ of genotype frequencies based on the product rule.” (Lander and Budowle, DNA Fingerprinting Dispute Laid to Rest (Oct. 27, 1994) Nature, vol. 371, pp. 735-738.) Furthermore, experience following issuance of the NRC report indicated that use of conservative calculations under the interim ceiling rule had “no noticeable impact on the use of DNA evidence.” The article concluded that the FBI's implementation of the unmodified product rule is a “reasonable best estimate.” (Lander and Budowle, DNA Fingerprinting Dispute Laid to Rest (Oct. 27, 1994) Nature, vol. 371, pp. 735-738.) As of the date of the Kelly hearing in the instant case, Dr. Budowle was not aware of any subsequent peer review articles that criticized the position taken in the joint article.10 Dr. Budowle stated that he had extreme confidence in the reliability of the statistical methods currently in use. Based on his conversations with Dr. Lander, he believed that Lander was also satisfied. Dr. Budowle conceded that there is seldom unanimous support for any proposition in the scientific community, but opined that there are hundreds of supportive scientific articles and presentations and that the forensic science community was overwhelmingly in support of his views as expressed in the Nature article.11
A large number of supportive scientific articles were referenced in the prosecutor's brief to the trial court. Also noteworthy is the prosecutor's citation in his trial court brief to a 1993 letter to Science by Lewontin in which he abandons his former opposition to all forms of the product rule in interpreting DNA probabilities, and endorses use of the ceiling principal form of the product rule. (See also State v. Bloom (Minn.1994) 516 N.W.2d 159 [Hartl testifying to results under the interim ceiling method, the NRC's proposed 1992 variation of the product rule]; and the extensive listing of articles supporting the acceptance of the unmodified product rule in People v. Marlow (1995) 48 Cal.App.4th 740, 784, 41 Cal.Rptr.2d 5 review granted July 20, 1995 (S046966).) Subsequent to Barney, and publication of the Nature article, there have been several appellate decisions concluding that the use of the unmodified product rule is no longer in doubt. Our Supreme Court has granted review in all of those cases, which leaves no published decision to guide trial courts in this analysis.12
Cases from other jurisdictions have discussed the pre-publication release from the NRC discussing the 1996 update. (State v. Johnson (1996) 186 Ariz. 329, 335, 922 P.2d 294, 300; Commonwealth v. Blasioli (Pa.Super.Ct.1996) 685 A.2d 151, 1996 WL 647905; State v. Morel (R.I.1996) 676 A.2d 1347, 1353.) Reports issued by the NRC are accorded a great deal of respect. The statutory charter of the National Academy of Sciences provides that it shall, upon request by any governmental department, “investigate, examine, experiment, and report upon any subject of science or art․” (36 U.S.C.A. § 253.) The National Research Council was organized by the National Academy of Sciences in 1916 at the request of the President, to further the work of the Academy. In particular, it is charged with surveying and reporting on “the broad possibilities of science” and directed to formulate comprehensive projects of research and means of utilizing scientific resources. Scientists and other professionals are encouraged to participate in the Council's work when requested. (Exec. Order No. 2859 (May 11, 1918) as amended, Exec. Order No. 10668, 21 Fed.Reg. 3155 (May 10, 1956); Exec. Order No. 12832, 58 Fed.Reg. 5905 (Jan. 19, 1993); 36 U.S.C.A. § 253, pocket part.) The 1996 pre-publication NRC report on DNA “concludes that sufficient data has been gathered to make the conservative approach of the ceiling principles no longer needed. [Citation.] It further concludes that alternative methods, primarily the product rule, are now appropriate. [Citation.]” (State v. Johnson, supra, 186 Ariz. 329, 922 P.2d 294, 300.) These conclusions are incorporated in the text of the NRC Update. The FBI's published worldwide population survey has been described as a rebuttal to the criticisms of probability estimates that were discussed in Barney. (People v. Dalcollo (1996) 282 Ill.App.3d 944, 218 Ill.Dec. 435, 445, 669 N.E.2d 378, 388.) Dr. Budowle referenced the FBI's population surveys, which were recommended by the 1992 NRC report in his Nature article and during his testimony at the Kelly hearing in the instant case. (Lander and Budowle, DNA Fingerprinting Dispute Laid to Rest (Oct. 27, 1994) Nature, vol. 371, p. 738.) Thus, a great deal of material exists to support use of the unmodified product rule as a generally accepted scientific technique.
In order to meet the standard of Kelly, the proponent of scientific evidence must show “ ‘(1) [T]he reliability of the method must be established, usually by expert testimony, and (2) the witness furnishing such testimony must be properly qualified as an expert to give an opinion on the subject. (See Evid.Code, §§ 720, 801․) Additionally, the proponent of the evidence must demonstrate that correct scientific procedures were used in the particular case. [Citations.]’ ” (People v. Leahy (1994) 8 Cal.4th 587, 594, 34 Cal.Rptr.2d 663, 882 P.2d 321, citing People v. Kelly, supra, 17 Cal.3d 24, 30, 130 Cal.Rptr. 144, 549 P.2d 1240.) To establish the reliability of a scientific method or discovery, “the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” (Ibid. [Italics omitted.] ) 13 Our Supreme Court has clarified this part of the Kelly test by stating that general acceptance “does not demand ‘absolute unanimity of views in the scientific community․ Rather, the test is met if use of the technique is supported by a clear majority of the members of that community.’ [Citation.]” (People v. Leahy, supra, 8 Cal.4th 587, 612, 34 Cal.Rptr.2d 663, 882 P.2d 321 [italics omitted].) The court noted that trial courts should “consider the quality, as well as quantity, of the evidence supporting or opposing a new scientific technique.” (Id. at p. 612, 34 Cal.Rptr.2d 663, 882 P.2d 321.) Based on the quality and the quantity of evidence produced in the instant case, we conclude that the result in Barney regarding the unmodified product rule has been superseded by legal and scientific developments since that case was filed. These developments include the conclusions in the Nature article, the FBI's publication of the population survey, and the articles and cases cited in the prosecutor's briefs in the trial court. The trial court in the instant case was presented with overwhelming evidence, in the form of live testimony and scientific and legal authorities, and its decision to admit the evidence of statistical calculations, whether by use of the unmodified product rule or the interim ceiling variation of the rule was not reversible error.14
II.-IV.**
CONCLUSION
The sentence is modified by striking four months from the total terms, thereby reducing appellant's total sentence from 45 years and four months to 45 years. In all other respects, the judgment is affirmed.
FOOTNOTES
1. Unless otherwise indicated, all statutory references are to the Penal Code.
2. We refer to the “unmodified” product rule to differentiate it from the variations on the rule known as the ceiling principle and the interim ceiling principle, which were discussed in (People v. Barney (1992) 8 Cal.App.4th 798, 822, 10 Cal.Rptr.2d 731.)
3. It was explained at trial that a small amount of DNA could yield only two matching bands out of a possible six bands, which limited the ability to calculate probable matches in a larger population.
4. In Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, the United States Supreme Court rejected the rule of Frye v. United States (D.C.Cir.1923) 293 F. 1013, because the Frye inquiry has been superseded by the Federal Rules of Evidence. Despite this holding on the federal level, our Supreme Court has reaffirmed that the Kelly rule, which adopted the Frye standard for use in this state, remains the rule in California. (People v. Leahy (1994) 8 Cal.4th 587, 612, 34 Cal.Rptr.2d 663, 882 P.2d 321.)
5. Defense counsel agreed, stating: “There doesn't seem any more to be a whole lot of fussing about the biochemistry․ I don't think there's a whole lot of controversy on that any more.”
6. Dr. Blake received his bachelor's degree in criminalistics from the University of California at Berkeley, his doctorate in criminology from the same University, and had done graduate work on the determination of genetic markers in human semen.
7. After the trial in the instant case, Division Two of this court filed its opinion in People v. Morganti (1996) 43 Cal.App.4th 643, 50 Cal.Rptr.2d 837, holding that PCR evidence is generally accepted. (Id. at p. 669, 50 Cal.Rptr.2d 837.)
8. After the instant appeal was briefed, the NRC issued its Update. We note that one recommendation made in the NRC Update is “[i]n general, the calculation of a profile frequency should be made with the product rule.” (NRC Update, p. 5.) In its discussion of statistical issues, the Update states: “[t]he abundance of data in different ethnic groups within the major races and the genetically and statistically sound methods recommended in this report imply that both the ceiling principle and the interim ceiling principle are unnecessary.” (NRC Update p. 162.) We note these excerpts from the Update, which appear to support Dr. Budowle's views, only parenthetically, since the report itself was issued after the instant case was fully briefed. We reached the conclusions herein without reliance on the recommendations and discussions in the NRC Update.
9. Respondent's request for judicial notice of this article, which was apparently considered by the trial court, is granted.
10. The parties have not cited and we have not located any critical articles. We note, however, that the court in People v. Burks (1995) 51 Cal.App.4th 180, 43 Cal.Rptr.2d 791 review granted November 16, 1995 (S048916) referenced a December 1994 letter to Nature from Richard C. Lewontin of Harvard University, which was critical of the Lander and Budowle article. (Id., at p. 195, n. 10, 43 Cal.Rptr.2d 791; Barney, 8 Cal.App.4th at p. 814, 10 Cal.Rptr.2d 731.) We note, however, that “ ‘general acceptance’ does not require unanimity, a consensus of opinion, or even majority support by the scientific community.” (People v. Leahy (1994) 8 Cal.4th 587, 601, 34 Cal.Rptr.2d 663, 882 P.2d 321.)
11. Dr. Budowle also discussed the PCR process and testified that he had not seen an article that was critical of the process. He testified that PCR was generally accepted. He testified in detail about the process and the procedures used by the FBI in the PCR process.
12. See, e.g., People v. Soto (1994) 48 Cal.App.4th 924, 35 Cal.Rptr.2d 846 review granted March 16, 1995 (S044043) [use of product rule meets Kelly requirements]; People v. Wilds (1995) 48 Cal.App.4th 1740, 37 Cal.Rptr.2d 351 review granted March 16, 1995 (S044991) [use of product rule meets Kelly requirements]; People v. Marlow (1995) 48 Cal.App.4th 740, 41 Cal.Rptr.2d 5 review granted July 20, 1995 (S046966) [product rule generally accepted]; People v. Smith (1996) 46 Cal.App.4th 1412, 49 Cal.Rptr.2d 608 review granted April 25, 1996 (S052233) [events following Barney, including Nature article, reaffirm general acceptance of product rule]; People v. Amundson (1995) 48 Cal.App.4th 788, 41 Cal.Rptr.2d 127 review granted August 10, 1995 (S047242) [PCR, RFLP, and statistical calculation of probabilities by the product rule are generally accepted in light of post-Barney events]; see also People v. Burks, supra, 51 Cal.App.4th 180, 43 Cal.Rptr.2d 791 review granted November 16, 1995 (S048916) [modified ceiling approach generally accepted, following People v. Taylor, supra, 33 Cal.App.4th 262, 33 Cal.App.4th 262]. At this time, only one case in which review has been granted has reversed a trial court's admission of DNA evidence. The reasoning was not that the evidence was not generally accepted, but that there was insufficient evidence to support that finding. (People v. Venegas (1995) 48 Cal.App.4th 1720, 36 Cal.Rptr.2d 856 review granted March 16, 1995 (S044870) [following People v. Pizarro (1992) 10 Cal.App.4th 57, 12 Cal.Rptr.2d 436.)]
13. Barney and Taylor applied the Kelly test of admissibility to the final step of DNA analysis, the statistical frequency determination. (People v. Taylor, supra, 33 Cal.App.4th 262, 266, 40 Cal.Rptr.2d 132; People v. Barney, supra, 8 Cal.App.4th 798, 818, 10 Cal.Rptr.2d 731.) The point has been made that arguments regarding statistical projections of probabilities should go to the weight of the evidence, and should not be subjected to a Kelly analysis. (See, e.g., discussion rejecting argument in People v. Barney, supra, 8 Cal.App.4th 798, 818, 10 Cal.Rptr.2d 731.) Counsel has not raised this precise issue on appeal, therefore, we express no opinion on the propriety of subjecting the statistical projections to a Kelly analysis.
14. As noted by respondent, it is not clear from the record on appeal that the unmodified version of the product rule was the statistical method used to calculate probabilities. We infer that it was used because the prosecutor's stated objective at the Kelly hearing was to demonstrate that the unmodified product rule was now a generally accepted principle.
FOOTNOTE. See footnote *, ante.
DOSSEE, Associate Justice.
STEIN, Acting P.J. and SWAGER, J., concur.
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Docket No: No. A073821.
Decided: March 14, 1997
Court: Court of Appeal, First District, Division 1, California.
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