The People v. Pizarro (2013) · DecisionDepot

The People v. Pizarro

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
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California Court of Appeal Jun 13, 2013 No. F057722NPublished

Filed 6/13/13 (unmodified version attached)

CERTIFIED FOR PARTIAL PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE, F057722 Plaintiff and Respondent, (Madera Super. Ct. No. M8517) v.

MICHAEL ANTONIO PIZARRO, ORDER MODIFYING OPINION AND DENYING REHEARING Defendant and Appellant. [NO CHANGE IN JUDGMENT]

THE COURT: It is ordered that the opinion filed herein on May 21, 2013, be modified in the following particulars: 1. On page 102, at the end of the partial paragraph ending “perpetrator‟s sample,” the following paragraphs are added: Based on this evidence, the trial court had no reason to find that Myers failed to follow correct scientific procedure. Accordingly, it did not abuse its discretion. 4. Our Concerns Related to Allelic Dropout We recognize that we are not a scientific body, but we are nevertheless concerned, as was defense counsel, that allelic dropout has the potential to falsely incriminate an innocent defendant, which is a serious legal concern, as we explain below.

2. The following sentence is added on page 102 as the first sentence of former part II.E.5.f.3.a. (now part II.E.5.f.4.a.), under the heading “The Theory,” to read as follows: The People cite Butler for the proposition that allelic dropout will not cause a problem if the same kit is used to test both the perpetrator‟s evidence sample and the defendant‟s reference sample. 3. The sentence in the first paragraph of former part II.E.5.f.3.a. (now part II.E.5.f.4.a.) on page 102, which presently reads as follows: “Butler and other authors propound the theory that allelic dropout is not an issue in criminal cases when the same primers (and PCR conditions) are used on both the perpetrator‟s evidence sample and the defendant‟s reference sample—as long as the two samples come from the same person.” shall now read as follows: Butler and other authors do propound the theory that allelic dropout is not an issue in criminal cases when the same primers (and PCR conditions) are used on both the perpetrator‟s evidence sample and the defendant‟s reference sample—as long as the two samples come from the same person 4. The first sentence of the second paragraph of former part II.E.5.f.3.a. (now part II.E.5.f.4.a.) on page 102, which presently reads as follows: “We begin with some statements of this theory.” shall now read as follows: We begin with some statements of this theory, including Butler‟s. 5. The last paragraph of former part II.E.5.f.3.d. (now part II.E.5.f.4.d.) on page 112, which presently reads as follows: “It is our hope in discussing these issues that the scientific community will reexamine the possible effects and management of allelic dropout in criminal cases and determine how best to safeguard the innocent while incriminating the guilty.” shall now read as follows: We recommend that the scientific community reexamine the possible effects and management of allelic dropout in criminal cases. 6. Former part II.E.5.f.3.e. on pages 112 through 115 is deleted in its entirety.

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party; defendant testified at his first trial in which he contradicted portions of his statement to the police and admitted that “alcohol made him violent”; the Federal Bureau of Investigation (FBI) analysis presented at the first trial concluded that the DNA from the semen on the vaginal swabs matched the known blood sample of defendant; the case had been appealed twice; and the appellate court determined that the evidence against defendant was a “„strong circumstantial case‟” and that the DNA evidence clearly “„“sealed [his] fate.”‟” (Pizarro II, supra, 110 Cal.App.4th at pp. 553, 634.) During the second trial, the trial judge regularly admonished the jury not to consider anything other than the evidence presented in the courtroom. Juror No. 9 repeatedly violated that instruction during the trial. The parties and the trial court agree that Juror No. 9 committed misconduct. They disagree whether that misconduct amounted to juror bias, warranting a new, and third, trial. We sympathize with the trial judge who, having presided over two jury trials and a prolonged Kelly hearing amid two appeals, was called upon to make the difficult decision of whether to grant yet another new trial in a case that was then almost 20 years old. The trial court ultimately denied defendant‟s new trial motion, finding it to be a “close case” and a “real hard, hard decision to make.” While we agree with the trial judge that the juror misconduct in this case amounted to “gross misconduct” and was “absolutely outrageous,” we disagree with his decision denying the new trial motion. We conclude that reversal is required. Despite the good efforts of the trial judge and the attorneys to conduct the trial in accordance with the rules of evidence, procedure, and substantive law, the juror‟s misconduct in disobeying the court‟s repeated admonitions and in investigating the case on his own made a mockery of the trial process and prejudiced defendant. We view that juror‟s behavior in this case as criminal.4

while, everyone went to the elementary school to watch the men play basketball. Sandy knew defendant and other people were drinking because they were “just overly happy.” After the basketball, they returned to the house. During the remainder of the day, defendant left the house three times without Sandy. He did not tell Sandy where he was going, but she assumed he was going to the store. After his third trip, he told Sandy his friends were going to a party and he wanted to go. Sandy told him she wanted to go home, but they ended up going to the party at Shady Oak trailer park a few miles up Road 200, which was a two-lane mountain road with lots of trees, steep embankments, and no streetlights. When Sandy and defendant arrived at the party, Amber, Gloria, and Billy were already there. In total, there were about eight people at the party, one of whom was Scott Nelson. Sandy talked with Amber while defendant drank beer and hard liquor with his friends. Sandy did not drink much because she was nursing the baby. She may have had one-half of a beer. She was not happy to be there. She thought defendant seemed to be handling his alcohol “okay.” He was a regular drinker and she had seen him in various stages of intoxication in the previous couple of years. At about 10:00 or 10:30 p.m., Amber left the party with Billy and Gloria. Sandy asked defendant to leave, but he refused. At about 12:30 a.m., Sandy took the baby and left for home in the truck. She drove only a few minutes to Bass Fork Market, then decided she did not want to drive by herself, so she returned to the party. Defendant came outside and they argued for five or 10 minutes about going home. Defendant went back inside for about 20 minutes and came back out around 1:00 a.m. Defendant was angry with Sandy and he started walking toward Road 200, which was about 100 feet away from the trailer. He told Sandy he was going to his mom‟s. He had been drinking, but he was not staggering, falling down, or slurring his words. Sandy got into the truck with the baby and followed defendant down the road toward North

Fork. He was zigzagging across the road, walking from one side to the other and hiding behind trees and rocks. He appeared to be hiding from Sandy. At one point, he ran up an embankment on the side of the road, then back down to the road. Eventually, he started running on the road. He hit the hood of the truck and told Sandy not to stop in the middle of the road. As she followed him, she yelled at him to get in the car. She told him she just wanted to go home. Sandy had seen him intoxicated before, but she had never seen him act this way. This continued for more than 15 minutes, until Sandy gave up and drove into North Fork to Chris‟s house. She knocked on Chris‟s front door and eventually Amber opened the door. Sandy told her defendant was “out there” and she could not get him in the truck because he did not want to come. Amber said, “[W]ell, let‟s go get him.” Sandy told her to ask her mom. Amber left and returned with Chris, who gave Amber a turquoise flashlight and told them to be careful. Amber got in the truck and held the baby. Sandy drove back to the place she had last seen defendant. When they saw him walking, Sandy made a U-turn. They followed him and told him to get in the car, but he refused. He went up a hill and Sandy shined the flashlight on him. He came down and started running. Amber got out of the truck and set the baby on the seat, leaving the door slightly open. Sandy saw Amber in the headlights as she walked across the road toward defendant. Sandy picked up the baby and pulled the door closed. She followed Amber for about 10 seconds. After that, defendant and Amber disappeared. Sandy never saw Amber again. Sandy drove forward. She held her door open as she yelled for defendant and Amber because the driver‟s window was not operable. She heard nothing. It was dark and she could see nothing other than what her headlights illuminated. She yelled for defendant and Amber to turn on the flashlight, flash the light, or do something. Then she saw a flash of light behind a bush. The light pointed upward. Sandy closed her door, pulled forward, and made a U-turn. She stopped in front of the bush and yelled. She was holding the baby, so she could only yell from her open door, which was now on the

opposite side of the truck from the bush. There was no response and no more light, so she pulled forward, made another U-turn, and returned to the spot where she had seen the flash of light. She parked, opened the door, and yelled for defendant and Amber. She heard “a scream, a muffled sound, and nothing else.” It was as if someone put a hand over a mouth. It scared her and “[f]reaked [her] out.” She closed her door and immediately drove back to Chris‟s house. She told Chris, “I don‟t know what happened. I heard a scream, a muffled sound. I‟m scared. I don‟t know what‟s going on.” Chris told her to come in and they called the sheriff‟s department. Deputy Loring was on duty that night and he received the call around 2:50 a.m. Sandy drove to Sierra Automotive at the intersection of Roads 200 and 222 to meet the deputies. Deputy Loring and Deputy Weisert arrived and met Sandy in the parking lot. Sandy was sitting in the white truck with the baby and she seemed upset and frightened. She told them what had happened and they began searching for defendant and Amber. Sandy‟s parents came from Fresno to take her home. Sandy left the white truck at Chris‟s house. Just before 6:00 a.m., defendant arrived back at Chris‟s house. At about 6:00 a.m., defendant called Deputy Weisert at the station. According to Deputy Weisert, defendant did not seem intoxicated. He said his sister was missing. He explained that he got into an argument with Sandy. His sister came looking for him and he told her he did not want to talk about it. He took off up the hill with her flashlight. She yelled at him about the flashlight and he threw it down the hill. He did not go back down, but later woke up in the bushes and started walking home. As he did, “some cops came upon him and accused him of kidnapping his sister. And then … he basically ran home and was followed by the cops.” He did not describe these cops to Deputy Weisert. But she and Deputy Loring had been the only officers on duty that night, and after Deputy Loring left around 4:00 a.m., Deputy Weisert was the only officer on duty. The next officer would not come on duty until 6:45 a.m. In Deputy Weisert‟s opinion, defendant was telling her a story

made him violent”; the FBI analysis presented at the first trial concluded that the DNA from the semen on the vaginal swabs matched the known blood sample of defendant; the case had been appealed twice; and the appellate court determined that the evidence against defendant was a “„strong circumstantial case‟” and that the DNA evidence clearly “„“sealed [his] fate.”‟” (Pizarro II, supra, 110 Cal.App.4th at pp. 553, 634.) In one part of his testimony at the hearing, Juror No. 9 said that he read the entire opinion a few times; in another part of his testimony, he said that he only skimmed portions of it; and in yet another part, he said he “soaked in” whatever he could understand of the opinion. Specifically, he explained that he conducted this Internet research two or three times. He “researched the case during the testimony phase of the trial. [H]e found the process of researching the case to be quite simple and detailed information of the case to be readily available through the Internet.” As the testimony began, “[he] was lost. And that was really [his] reasoning to try and find to know where [he] was within the case.” He “felt that [he] wanted to do what was right for [defendant‟s] case and understand what was going on within the case. So that was the reason why [he] had pulled up some information, which turned out to be the very thick PDF file [the prior appellate opinion], to understand how the series of events had happened.” He “just wanted to understand the timeline[ and] the series of events of the case so [he could] understand so [he could] be on top of stuff while [he was] listening .…” He first read a current newspaper article about the case explaining it was an early DNA case for California courts and it was back in court. Then he turned to the prior appellate opinion, which “was so thick that it took [him] a long time.” He did not pay much attention to the other items produced by his Internet search because the prior appellate opinion gave him the “information [he] needed to know what was going on.” He downloaded the prior appellate opinion and kept it on his computer for about three weeks. He explained:

“[I]nitially, … I just wanted to see it and when I seen that it had the—the timeline … [h]ow the timeline played out then that helped me out a lot. So I read all the way through from start to finish and that kind of gave me an overview to stay caught up with what you guys, in my opinion, what you guys were saying. I‟m sure you guys were doing a good job, but I guess I‟m slow. [¶] … [¶] No, [I did not read through the entire document;] when I got to the DNA stuff and markers and the alleles and all that it didn‟t … make sense at that time.” He said he would refer back to the prior appellate opinion when questions arose in his mind and he would attempt to clarify them. He mostly wanted to clarify the timeline. He said, “[I]t was mostly just facts that I was sticking to.” When asked if he read the portion of the facts that explained defendant‟s testimony in the first trial, he answered, “Oh, okay, yeah. No, I read everything to where it started getting really technical, like the DNA, the extractions of DNA, and the markers. I didn‟t understand the theory and stuff like that. But, uh, yeah, I did read this.” In reference to defendant‟s testimony, he explained: “I was looking at everything. I was looking at what people were saying, who said what. I was looking at who was where. I mean, that‟s timelines, that‟s what a timeline is. Where everybody was at. What they were saying. Who was involved. I mean, that‟s—that‟s what I was—and when it stop[ped] talking about stuff like that, and then it start[ed] going into theories and DNA markers and everything that I didn‟t understand, I stopped.” He said he just skimmed the DNA and “pulled out whatever [he] could understand, but most of it” did not make sense to him. He did, however, learn that the FBI was involved in analyzing the DNA evidence. When asked again if he read the prior appellate opinion from beginning to end, he answered: “Oh, absolutely. I mean, what I could understand I soaked in.” The prior appellate opinion contained information that was not disclosed in the second trial. It was also highly prejudicial to defendant, as we explain in more detail later in this opinion. There can be little doubt that if, during jury selection, Juror No. 9 disclosed he had read the prior appellate opinion in this case, he would have been

immediately excused for cause. In our view, if this disclosure had been revealed to the court during the trial, and the defense thereafter moved the court to discharge him, the trial judge would likely have done so. Here, in contrast, the disclosure occurred after the verdict, where the controlling question was whether the juror was actually or inherently biased. (Carpenter, supra, 9 Cal.4th at p. 653.) The parties agree that Juror No. 9 committed misconduct in consulting an extraneous information source and that prejudice is presumed unless rebutted. Defendant argues that the record establishes both actual and inherent bias on the part of Juror No. 9. The People dispute that actual bias against defendant was shown. As to inherent bias, they both cite cases in support of their respective positions that the presumption of prejudice was or was not rebutted. Actual bias does not require a showing of prejudice before a verdict will be set aside, because a defendant is entitled to 12 unbiased jurors, not 11, regardless of whether an unbiased jury would have reached the same verdict. (Carpenter, supra, 9 Cal.4th at p. 654.) On the other hand, a finding of inherently likely bias carries a presumption of prejudice that may be rebutted by an affirmative evidentiary showing or by a reviewing court‟s examination of the entire record. (Id. at p. 657.) The presumption is imposed because Evidence Code section 1150 precludes a defendant from affirmatively proving that the jury‟s deliberations were improperly affected by the misconduct. Since actual prejudice cannot be proven, bias is established if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. (Carpenter, supra, at pp. 652-653.) We conclude that is what happened here. C. Standard of Review Whether prejudice arose from jury misconduct is a mixed question of law and fact subject to an appellate court‟s independent determination. (People v. Nesler (1997) 16 Cal.4th 561, 582-583 (Nesler) [reviewing court independently determines whether juror was biased].) Courts have stressed the particular need for independent review of the trial

court‟s reasons for denying a new trial motion in juror bias cases. This is because the reviewing court must protect the complaining party‟s right to a fully impartial jury as an “„“inseparable and inalienable part” of the [fundamental] right to jury trial [(U.S. Const., amend. VI; Cal. Const., art. I, § 16)]. [Citations.]‟” (People v. Ault (2004) 33 Cal.4th 1250, 1262.) D. The Seminal Case of Carpenter In Carpenter, the defendant was found guilty of rape and murder, and was sentenced to death. The trial court granted the defendant‟s habeas corpus petition based on juror misconduct in obtaining extraneous information about the defendant‟s convictions and death sentences in a related case. While the trial court stated that the evidence of guilt was “„overwhelming,‟” it concluded that the usual harmless error test did not apply. (Carpenter, supra, 9 Cal.4th at pp. 644-645.) The Supreme Court reversed without prejudice to the defendant‟s right to file a new petition based on the combined records of the habeas corpus proceeding and the underlying trial. (Id. at p. 660.) In a four-to-three opinion, a divided Supreme Court set forth a two-part test for determining bias in an extraneous source case. First, inherent bias is shown if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror—in other words, had an “„“effect on the verdict or … deprived the complaining party of thorough consideration of his case .…”‟” (Carpenter, supra, 9 Cal.4th at p. 652, quoting from Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 416 (Hasson)), or the vote of the juror was influenced by exposure to prejudicial matter relating to the defendant (Carpenter, supra, at p. 651, quoting from People v. Marshall (1990) 50 Cal.3d 907, 950-951 (Marshall)). This test is “analogous to the general standard for harmless-error analysis under California law.” (Carpenter, supra, at p. 653.) Under that standard, trial court error is deemed harmless unless there is a reasonable probability that it affected the verdict. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)

Second, if the misconduct and surrounding circumstances make it substantially likely that the juror was actually biased against the defendant, the judgment must be set aside no matter how convinced the court might be that an unbiased jury would have reached the same result. (Carpenter, supra, 9 Cal.4th at p. 654.) Respectfully, we find the Carpenter majority opinion confusing and in some respects contradictory of the very case authority it relies on in reaching its conclusion that harmless error analysis applies to a case of inherent juror bias. In applying the harmless error analysis, Carpenter announces a rule that arguably undermines the integrity of our jury system. (Nesler, supra, 16 Cal.4th at p. 578 [requirement that verdict must be based on evidence developed at trial goes to fundamental integrity of trial by jury].) We are not the first court to question the reasoning, language and conclusion of the Carpenter opinion. (See People v. Von Villas (1995) 36 Cal.App.4th 1425, 1445-1458 (Woods, J., dis. opn.).) We will explain. After summarizing and approving prior case law concerning juror exposure to extraneous information—including Marshall, supra, 50 Cal.3d at pages 950 through 951 and People v. Holloway (1990) 50 Cal.3d 1098 (Holloway), disapproved on another point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1—for the propositions that (1) harmless error analysis for ordinary trial error does not apply to inherent juror bias based on a juror‟s exposure to extraneous material, (2) consideration of actual prejudice is not warranted in such circumstances, and (3) the ultimate question of whether a juror‟s exposure to extraneous material constitutes reversible juror misconduct is judged by an objective standard, namely, whether, based on an examination of the extraneous material, the court concludes the material is inherently and substantially likely to have influenced the juror (Carpenter, supra, 9 Cal.4th at p. 651, citing and quoting from Marshall), the Carpenter majority then inexplicably concludes its analysis by stating—directly contrary to Marshall and Holloway—that inherent juror bias based on extraneous material is governed by the general standard for harmless error analysis. (Carpenter, supra, at

p. 653.) Not only does the majority opinion not disapprove Marshall and Holloway, it cites both cases approvingly for the rule that standard harmless error analysis does not apply in an inherent bias case. Then, in an apparent turnaround, the Carpenter majority declares, citing Hasson, that the presumption of prejudice can be rebutted where there is overwhelming proof in support of the verdict. (Carpenter, supra, at p. 654, citing Hasson, supra, 32 Cal.3d at p. 417.) In other words, under harmless error analysis, the misconduct can always be deemed harmless if the evidence of guilt is strong enough. We find this proposition deeply troubling on many levels: it fails to uphold the venerable and constitutional right to an impartial jury; it fails to recognize the difference between assessing prejudice from ordinary trial error and from jury misconduct that impugns the guarantee of an impartial jury; it conflicts with several Supreme Court cases that did not apply harmless error analysis in an inherent bias case; it validates trial outcomes even when a juror has flagrantly disregarded the rules of evidence and procedure that the parties and trial judge have endeavored scrupulously to follow throughout a trial; it significantly impairs the presumption of prejudice, which the law imposes for this kind of jury misconduct; it holds that the only adverse “influence” on a juror that matters is one that changes a juror‟s vote; it unduly expands the role of the reviewing court in derogation of the jury‟s role; and it treats inherent juror bias the same as the erroneous introduction of evidence in determining whether the judgment should be reversed. We discuss each of these points in turn. E. Effects of Carpenter 1. Right to Impartial Jury The United States and California Constitutions guarantee the right to an impartial jury. (U.S. Const., 6th Amend. [“the accused shall enjoy the right to a speedy and public trial, by an impartial jury”; Cal. Const., art. I, § 16 [“Trial by jury is an inviolate right”]; People v. Wheeler (1978) 22 Cal.3d 258, 265 [art. I, § 16 includes the right to have verdict rendered by impartial jurors], overruled in part by Johnson v. California (2005)

545 U.S. 162, 165-173.) The integrity of any trial depends upon the impartiality of the judge and jury. A major objective of the jury selection process and the trial court‟s repeated admonition that jurors not discuss the case with others and not consider matters outside the evidence received in the courtroom is to select jurors who are and will remain impartial. Any deficiency that undermines a trial‟s integrity calls for reversal without consideration of actual prejudice. (Carpenter, supra, 9 Cal.4th at p. 651, quoting from Marshall, supra, 50 Cal.3d at p. 951.) 2. Harmless Error Analysis Harmless error analysis presupposes an impartial judge and jury. (Rose v. Clark (1986) 478 U.S. 570, 576-579.) Our California Constitution specifies that no judgment may be set aside based on errors of misdirection of the jury, improper admission or rejection of evidence, errors of pleading, or errors of procedure unless the error results in a miscarriage of justice. (Cal. Const., art. VI, § 13.) Whether a miscarriage of justice occurs depends on whether the error affected the outcome of the case. (People v. Breverman (1998) 19 Cal.4th 142, 165.) When one of these enumerated trial errors is established, the harmless error test permits a reviewing court to consider the weight and strength of the evidence to determine if the lower court error was prejudicial, that is, whether the error affected the outcome. (Watson, supra, 46 Cal.2d at p. 836.) Juror misconduct is not one of the trial errors enumerated in article VI, section 13. Some lower court errors defy harmless error analysis, such as when a defendant is deprived of his right to counsel or where the trial judge is not impartial. (Arizona v. Fulminante (1991) 499 U.S. 279, 309-310.) The reason is this: “Each of these constitutional deprivations is a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. „Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.‟ (Rose v. Clark, [supra], 478 U.S., at 577-578 (citation omitted).”

his vote on the verdict. (Evid. Code, § 1150 [effect of a statement or conduct on juror‟s mental processes or voting is inadmissible].) But viewing the prior appellate opinion objectively, we conclude there is a substantial likelihood that the material influenced Juror No. 9 in a way that favored the prosecution and disfavored the defense. For example, the extraneous information may have, in Juror No. 9‟s mind, lowered the prosecution‟s burden, shifted the burden of proof to the defense, or made him skeptical of defense theories or evidence. (People v. Martinez (1978) 82 Cal.App.3d 1, 21-22; People v. Cumpian (1991) 1 Cal.App.4th 307, 312 [prosecutor‟s burden lightened or defense contradicted].) This is so even though Juror No. 9 may still have voted for guilt had he not received the extraneous information (as speculative as that is). The People, relying on Carpenter, contend that regardless of the quantity or prejudicial content of the extraneous information, and as long as it does not amount to actual bias, inherent juror bias should be deemed harmless if the appellate court determines the evidence of guilt is sufficiently compelling. But a defendant‟s right to an impartial jury is trivialized if a reviewing court can excuse serious jury misconduct by declaring that any reasonable juror who had not been exposed to the extraneous information would have found the defendant guilty anyway. 3. Conflicts with Precedent In 1990, just five years before Carpenter was handed down, the California Supreme Court decided Marshall and Holloway. Both opinions made the emphatic point that assessing prejudice resulting from a juror‟s exposure to extraneous information is “different from” and “less tolerant than” harmless error analysis for ordinary trial error. (Marshall, supra, 50 Cal.3d at p. 951; Holloway, supra, 50 Cal.3d at p. 1110.) Marshall‟s opinion was unanimous and Holloway included a single, concurring opinion and no dissent. Carpenter cites both cases approvingly and even quotes the above language in its own opinion. (Carpenter, supra, 9 Cal.4th at p. 651.)

Marshall did not announce a new rule. Earlier Supreme Court decisions reversed convictions based on a juror‟s obtaining extraneous information without any discussion of the strength of the evidence or the harmless error rule. (See People v. Von Villas, supra, 36 Cal.App.4th at pp. 1446-1447 (Woods, J., dis. opn.).) And, lest there be a concern that the presumption of prejudice is too difficult to overcome in the absence of the harmless error rule, we point out that our Supreme Court has affirmed several cases since Carpenter, supra, 9 Cal.4th 634 by finding that the information was not prejudicial to the defendant for reasons unrelated to the strength of the evidence of guilt. (People v. Thomas (2012) 53 Cal.4th 771, 819 [juror learning of witness‟s wife‟s recent shooting death not likely prejudicial because witness‟s testimony only involved defendant‟s purchase of a truck, which was not actively contested]; People v. Tafoya (2007) 42 Cal.4th 147, 195 [no likelihood of detrimental influence because the misconduct occurred after the verdict]; People v. Yeoman (2003) 31 Cal.4th 93, 159-160 [juror‟s improper remarks about drug screening procedures at jail not objectively prejudicial because whether the defendant was under the influence had little relevance to his mental state and whether he ever used drugs was not at issue]; People v. Jenkins (2000) 22 Cal.4th 900, 1048 [prejudice rebutted where juror who received information about case from news source was questioned during trial and trial judge made findings that juror learned very little, asserted he could be fair, was conscientious juror, and was relieved to learn that news account was false].) The Marshall test for evaluating prejudice in an inherent bias case is reasonable. If the reviewing court, after a careful review of the record, determines it is inherently and substantially likely that the extraneous material influenced the juror to the defendant‟s detriment, the judgment must be set aside. Prejudice in this context does not require proof of “actual prejudice,” that is, proof that the extraneous material changed a juror‟s vote. Thus, this prejudicial analysis is different from and less tolerant than harmless error analysis. (Marshall, supra, 50 Cal.3d at p. 951; Holloway, supra, 50 Cal.3d at p. 1110;

Carpenter, supra, 9 Cal.4th at p. 651.) We would clarify the test by making explicit that influencing a juror to the defendant‟s detriment means likely to cause a juror to lower the prosecutor‟s burden, shift the burden to the defense, become skeptical of defense evidence or theories, deprive the defendant of thorough consideration of his case, or vote differently than the juror would have if not exposed to the extraneous information. 4. Disregard of Rules of Evidence and Procedure The Carpenter rule can lead to affirming verdicts in cases where the rules of evidence and procedure, which trial judges and counsel endeavor scrupulously to follow, are flagrantly disregarded by a juror or jurors. (Holloway, supra, 50 Cal.3d at p. 1110 [court‟s and counsel‟s “efforts were to no avail”].) A jury trial is not a free-for-all presentation of evidence and argument. Guided by the rules of evidence, along with considerations of procedural and substantive law, a trial judge makes numerous rulings that regulate the admissibility of evidence. These rulings directly influence the parties‟ trial strategies, including what witnesses to call, what questions to ask and how to argue their cases before the jury. Counsel are bound by the trial court‟s rulings and are often expressly prohibited from bringing certain matters before the jury by way of evidence or argument. When jurors receive information about the case outside of the courtroom, all of the work of the court and parties to comply with the law is potentially undone. When the extraneous information is viewed objectively and the court determines the information is likely to have biased the juror against the defendant, it is not reasonable, in light of the trial court‟s efforts to limit the evidence to what is permitted by law, to uphold the verdict simply because a reviewing court thinks the defendant would have been convicted anyway. By way of illustration, assume a defendant is charged with robbery and there is overwhelming evidence of his guilt. Assume six jurors independently learn from reading the newspaper the following additional information that was expressly ruled inadmissible before the trial began: the defendant had four prior robbery convictions, had been to

prison, was on parole when the instant offense occurred, confessed to the crime (a Miranda violation made it inadmissible), and had two other pending robbery cases. The six jurors do not share this information with any other jurors. No actual bias is shown. Can this serious misconduct be regarded as harmless and the verdict upheld simply because the reviewing court concludes that the defendant, in the absence of the jury misconduct, would have been convicted anyway? According to Carpenter, the answer is yes. 5. Presumption of Prejudice Carpenter renders the presumption of prejudice useless when the evidence of guilt is “„overwhelming.‟” (Carpenter, supra, 9 Cal.4th at p. 655.) A verdict should not stand if an objective view of the extraneous information leads to the conclusion that the extraneous information was substantially likely to have influenced the juror. (Marshall, supra, 50 Cal.3d at pp. 650-651.) Extraneous material can influence a juror in different ways: lowering the prosecutor‟s burden, shifting the burden to the defense, making the juror skeptical of defense evidence or theories, depriving the complaining party of thorough consideration of his case, or actually causing the juror to vote differently than the juror would have if he or she had not received the outside material. Since a defendant cannot elicit from a juror how the information affected the juror‟s thinking (Evid. Code, § 1150), the law imposes a presumption of prejudice to compensate for this evidentiary handicap. (Carpenter, supra, 9 Cal.4th at p. 652.) But allowing the weight of the evidence—as judged by a reviewing court—to overcome the presumption renders the presumption illusory. It is circular reasoning to impose the presumption because of a defendant‟s legal inability to prove actual prejudice, and then allow the prosecution to overcome the presumption by convincing the court that the defendant would have been convicted in the absence of the misconduct, when it is clear that the defendant cannot offer any rebuttal because he is precluded from asking jurors about the effect the outside material had on their thought processes.

In other words, if the evidence is strong enough, there really is no presumption of prejudice, which means the only way a defendant will be entitled to a new trial based on jury misconduct in receiving extraneous information is to prove actual prejudice, which Evidence Code section 1150 precludes him from proving. 6. Influencing a Juror Although Carpenter does not say so expressly, one effect of applying the harmless error analysis in these circumstances is to declare categorically that the only influence on a juror that is relevant is whether the extraneous material actually affected the juror‟s vote. Carpenter ignores other inimical influences that may occur, such as lowering the prosecutor‟s burden, shifting the burden to the defense, or making the juror skeptical or distrustful of defense evidence or theories. It also ignores language in its own opinion that the presumption of prejudice is an “„“aid to those parties who are able to establish serious misconduct of a type likely to have had an effect on the verdict or which deprived the complaining party of thorough consideration of his case .…”‟” (Carpenter, supra, 9 Cal.4th at p. 652, quoting from Hasson, supra, 32 Cal.3d at p. 416, italics added.) No one could reasonably argue that such influences are innocuous or do not matter. They can affect a juror‟s ability to cast his or her vote based solely on the evidence received in court and affect a juror‟s ability to hold the prosecution to the burden of proving guilt beyond a reasonable doubt. Thus, prejudice can be shown not only when the misconduct results in a different verdict, but also when the misconduct deprives the defendant of thorough consideration of his case. If an objective appraisal of the extraneous information leads a reviewing court to conclude that it is likely such information would lower the prosecution‟s burden, shift the burden to the defense, or create skepticism about the defense in the mind of a juror receiving such information, then the defendant has been prejudiced because he has been deprived of thorough consideration of his case by an unbiased jury.

We know that if a trial court errs in instructing on the prosecution‟s burden of proof, the error is reversible per se; harmless error analysis does not apply. (Aranda, supra, 55 Cal.4th at p. 367; Sullivan, supra, 508 U.S. at p. 281.) We fail to discern a difference between a case where the trial court has misinstructed on the prosecution‟s burden of proof and a case of jury misconduct based on receipt of extraneous information that influenced the juror by lowering the prosecutor‟s burden of proof or shifting it to the defense. If the reviewing court believes the material was substantially likely to have influenced the juror in one of these ways, there should be no further opportunity to rescue the verdict under the harmless error test. This is particularly so when the misconduct is discovered after the verdict because there is no opportunity for the court to take corrective steps through admonition or other measures. (Holloway, supra, 50 Cal.3d at pp. 1111-1112.) The inherent bias test, as described in Marshall and Holloway, is reasonable, understandable and sufficient to identify reversible prejudice. The harmless error test should not be tacked on to it. 7. Expanding Reviewing Court’s Role Another concern is that Carpenter expands an appellate court‟s traditional limited role to one that includes weighing evidence to determine whether a jury would have convicted defendant absent the misconduct. While appellate courts are called upon to consider the weight of the evidence in applying harmless error analysis to ordinary trial error scenarios (Watson, supra, 46 Cal.2d 818) and to cases in which federal constitutional error has occurred (Chapman v. California (1967) 386 U.S. 18), such is not the case where the error is “structural” (Arizona v. Fulminante, supra, 499 U.S. at p. 309) or undermines the integrity of a trial (Marshall, supra, 50 Cal.3d at p. 951). A conviction marred by juror bias—actual or inherent—undermines the integrity of a trial. When a reviewing court nonetheless affirms a conviction by applying the harmless error test, then “„“the wrong entity judge[s] the defendant guilty”‟” (Aranda, supra, 55 Cal.4th at p. 368,

F. Confusing References in Carpenter The Carpenter majority confusingly cites Marshall for the proposition that in an actual bias case, harmless error analysis does not apply. (Carpenter, supra, 9 Cal.4th at p. 654, citing and quoting from Marshall, supra, 50 Cal.3d at p. 951.) We agree that the harmless error test does not apply in an actual bias case, but Marshall was not an actual bias case and never addressed the subject of actual bias. It dealt with inherent juror bias. Thus, the portion of the Marshall opinion that Carpenter cites in support of its declaration that harmless error analysis does not apply to actual juror bias was actually a statement the Marshall court made regarding inherent juror bias. The Carpenter majority cites Hasson as an example of the application of the harmless error analysis in an extraneous information case (Carpenter, supra, 9 Cal.4th at p. 654). But the portion of the Hasson opinion cited by Carpenter dealt with misconduct based on juror inattentiveness, not on a juror‟s receipt of extraneous information. (Hasson, supra, 32 Cal.3d at p. 414.) The Carpenter majority‟s characterization of Hasson as an example of a case in which the harmless error standard was applied in an extraneous information case is simply incorrect. G. Reconsideration of Carpenter We respectfully urge our Supreme Court to reconsider its Carpenter opinion and to follow the Marshall-Holloway line of authority that excludes application of the harmless error analysis in an inherent juror bias case based on receipt of extraneous information. We believe that harmless error analysis should not apply to cases of juror bias, whether actual bias or inherent bias. The test of whether a juror was influenced by the extraneous information should not be limited to the situation where it caused the juror to cast a different vote than the juror would have cast if the extraneous material had not been considered. It should be sufficient to show juror bias if the extraneous material is substantially likely to have caused the juror to lower the prosecutor‟s burden, shift the

“The entire case was tried on the premise that defendant‟s prior record was inadmissible. There was no voir dire about it, no limiting instructions were given, and the parties went to great effort to excise such references from defendant‟s extrajudicial statements. The court had no chance to take any curative measures because of Juror Beck‟s concealment of the misconduct. In such circumstances, we are unable to say that the juror misconduct did not prejudicially affect the outcome of the trial.” (Holloway, supra, 50 Cal.3d at p. 1112.) However, Juror No. 9‟s knowledge of defendant‟s convictions, standing alone, may not have been sufficiently prejudicial to warrant reversal. (People v. Ledesma (2006) 39 Cal.4th 641, 683 (Ledesma) [nothing incurably prejudicial about a jury learning that a defendant was previously convicted of the crime for which he was then on trial]; Carpenter, supra, 9 Cal.4th at p. 655 [evidence that the defendant had been convicted of different but related crimes not prejudicial where evidence was overwhelming and the only fact the juror learned out of court was the verdict of the first jury].) But there is more. The prior appellate opinion quotes from the statement of facts contained in the earlier opinion (Pizarro I, supra, 10 Cal.App.4th 57). The statement of facts from Pizarro I mentions that defendant testified in the first trial. He did not testify in the second trial, and the second jury was never informed that there had been an earlier trial or that defendant had testified in a previous trial. Surely, the defense did not want the second jury to know that defendant had previously been convicted or that he had testified in the first trial. While the jury was properly instructed that defendant had a constitutional right not to testify and that the jury was not to discuss this subject or penalize defendant for exercising that right, it is reasonable to project that, armed with the knowledge that defendant had been convicted in an earlier trial in which he testified, a juror would be inclined to think defendant chose not to testify in his second trial because

the defense believed that his testimony in the first trial contributed to his earlier conviction. If this occurred in the mind of Juror No. 9, it certainly prejudiced defendant, but Evidence Code section 1150 precludes inquiry into Juror No. 9‟s mental processes. Prejudice is presumed from the misconduct. Again, by itself, the disclosure that defendant testified in the first trial may not be enough to establish prejudice warranting reversal. (Ledesma, supra, 39 Cal.4th at p. 683.) But there is more. On the subject of defendant‟s sobriety on the day of the crime, the prior appellate opinion states defendant had consumed beer throughout the afternoon and continued to drink at the party. When Sandy asked him to get into their truck, he behaved erratically, crisscrossing the road, lying in front of the truck and hiding from her. Later, he showed up at his mother‟s house and, according to his mother, appeared to be drunk. The People counter by citing testimony received in the second trial in which some witnesses said defendant did not appear intoxicated or he seemed to be handling his alcohol “okay.” The People miss the point. The question here is whether Juror No. 9 was substantially likely to have been prejudiced against defendant on the subject of his sobriety based on the prior appellate opinion‟s statement of the facts. That statement of facts leaves no doubt that the appellate court‟s review of the trial record led it to conclude that defendant was drunk. If the second trial evidence was in conflict on the issue, Juror No. 9 had the impression that a panel of appellate justices had concluded he was drunk. Thus, the People‟s claim that the extraneous information was presented to the jury anyway is not accurate. The jury was not told that an appellate court‟s review of the evidence led it to conclude that defendant was drunk. This information, judged objectively, was inherently and substantially likely to have influenced Juror No. 9 unless intoxication had nothing to do with the crimes, which leads us to the next related issue: motive. The prior appellate opinion reveals that defendant told an investigator that alcohol made him violent. This testimony was never mentioned in the second trial. Not only does this admission make relevant how much alcohol defendant had consumed at the

time of the crime, it also furnishes an explanation for why this homicide even occurred. Defendant points out that the People offered no explanation for why he would harm his younger half-sister except for his intoxication and desire for sexual gratification, and that there was no evidence of any prior improper behaviors between them and no evidence that defendant had ever been violent. Therefore, defendant‟s admission that alcohol made him violent, coupled with the appellate court‟s conclusion that he was drunk at the time, supplies the necessary motivation or explanation for why defendant would commit such an abominable crime against his 13-year-old half-sister. The People point out that the defense attempted to use alcohol as a defense to minimize defendant‟s mental state. If so, defendant‟s admission in the first trial that alcohol made him violent becomes particularly prejudicial because the more the defense emphasized his intoxication as a mitigating factor, the more inculpatory his admission became. In other words, the admission that alcohol made him violent ran directly contrary to the defense position that his intoxication mitigated his culpability. Instead of minimizing his culpability, the admission explained his culpability. The prior appellate opinion‟s inclusion of this admission was potentially devastating to the defense in the mind of any juror who read it. Judged objectively, this admission was inherently and substantially likely to have influenced Juror No. 9. (Carpenter, supra, 9 Cal.4th at p. 653.) There is more. Most of the prior appellate opinion is devoted to a discussion of the DNA evidence in very technical and scientific terms. Aside from the complexities of that discussion, the opinion makes clear that the FBI conducted its own analysis of the DNA and concluded that the DNA from the sperm on the vaginal swabs matched the known blood sample of defendant. This court‟s opinion reversed the conviction because of flaws in the DNA testing procedures. The second trial made no mention of the FBI‟s DNA analysis or its conclusions. A reading of the prior appellate opinion‟s introduction or statement of the facts would inform the reader that the FBI‟s DNA analysis led it to conclude that

defendant was Amber‟s assailant and killer. This was the same conclusion reached by the California DOJ, which years later conducted its own DNA analysis that was presented in the second trial. The prior appellate opinion‟s disclosure of the FBI‟s analysis and conclusion corroborated the conclusion of the DOJ and thereby created a substantial likelihood of juror bias. It likely lightened the prosecution‟s burden on convincing Juror No. 9 of the soundness of the DOJ‟s conclusions because a separate and nationally recognized crime lab analyzed the DNA and came to the same conclusion. This is analogous to an appellate court‟s reversing a conviction because an eyewitness‟s testimony should have been excluded and then having a juror in the second trial learn, through an extraneous and improper source, that there was an eyewitness who saw defendant commit the crime, but for technical legal reasons was not allowed to testify at the second trial. Judged objectively, the FBI‟s conclusion was inherently and substantially likely to have influenced Juror No. 9. (Carpenter, supra, 9 Cal.4th at p. 653.) There is still more. The prior appellate opinion also declares that the evidence presented a “„strong circumstantial case‟” against defendant. (Pizarro II, supra, 110 Cal.App.4th at p. 634.) Thus, Juror No. 9 sat through the balance of the trial with the knowledge that an appellate court believed the case against defendant was a strong one. Imagine if, on the second or third day of trial, a juror overheard a trial judge comment to someone off the record that the case against the defendant was a “„strong circumstantial case‟” (ibid.); or, even worse, if the trial judge made such a comment on the record in open court in front of the jury. Would not the defense have legitimate grounds to object and move for mistrial because of the understandable concern that the judge‟s comments would tend to influence the jury and thereby prejudice the defense? Would not such a comment, judged objectively, create a substantial likelihood that the jury would give some deference to the judge‟s implied opinion that the defendant was guilty or at least that the prosecution had met their burden of proof? Here, instead of the trial judge making such a comment, we have a

felony murder rule and additional attorney argument on numerous topics. The jury twice reported being deadlocked.25 These facts are not consistent with a case of overwhelming evidence of guilt. c. Carpenter, Ledesma, Malone Do Not Require Affirmance Our decision does not run afoul of the authorities cited by the People. The People rely primarily on Carpenter, supra, 9 Cal.4th 634, Ledesma, supra, 39 Cal.4th 641, and In re Malone (1996) 12 Cal.4th 935 (Malone) in support of the argument that Juror No. 9‟s misconduct in reading the prior appellate opinion does not require reversal. The qualitative and quantitative content of the extraneous material contained in the prior appellate opinion read by Juror No. 9 distinguishes this case from the cases cited by the People. In Carpenter, the high court reversed the trial judge‟s order granting a new trial. It upheld a capital conviction even though a juror received information that the defendant had been convicted of different but related capital crimes. The underlying facts of those related crimes were introduced in the trial, but jurors were not told the defendant had been convicted of those crimes. The Supreme Court held there was no inherent bias in light of the entire record, since the evidence was “„overwhelming‟” (quoting the trial judge) and since the only fact the juror “learned out of court was the verdict of the first jury.” (Carpenter, supra, 9 Cal.4th. at p. 655, fn. omitted.) This was not the case here. In addition to revealing that a prior jury had found defendant guilty of the same crime for which defendant was on trial, even a cursory reading of the prior appellate opinion uncovered several pieces of extraneous information that were harmful and perhaps devastating to the defense (DNA analysis performed by the FBI connected defendant to the crime, the appellate court described defendant‟s alcohol consumption that day and characterized the evidence against defendant as a 25 See footnote 24, ante.

genetic code that gives DNA its meaning. Two bases form each rung and are bound together in the center in a complementary fashion—A binds to T, and G binds to C. The sugar-phosphate backbone rail is covalently bound, while the complementary bases coming together as rungs in the center are less tightly bound to one another by hydrogen bonds. This allows the linear halves of the ladder to separate for replication. Although most regions of DNA are identical from one person to the next, some regions vary in sequence and/or length. DNA analysis for the purpose of identification often relies on the comparison of these variable regions. STR‟s are stretches of DNA composed of repeated blocks of short sequences, often four nucleotides long. The number of repeats varies among people, usually within the range of 10 to 20 repeats. The function of these repetitive regions is unknown, but their variability provides an opportunity to identify differences between two people, such as perpetrator and suspect in a criminal case, or father and child in a paternity case. Because a person inherits a set of chromosomes (22 plus an X or Y) from each parent, every locus has two versions (alleles). These alleles can be the same or they can be different. In STR analysis, the number of repeats in an STR allele (reflected in the length of the allele) gives the allele its name/number. The results of the analysis are produced in a graph (electropherogram) that shows, for each locus, two peaks if the person‟s two alleles are different (heterozygous), or one larger peak, roughly twice the height of two heterozygous peaks, if the person‟s two alleles are the same (homozygous). For each peak, the electropherogram labels the allele repeat number and the height of the peak. Thus, if a person‟s two alleles at a particular STR locus are both the same length, for example 14 repeats long, the person‟s genotype is 14,14 and homozygous. If the person‟s alleles at a locus are different lengths, for example 14 and 19 repeats long, the person‟s genotype is 14,19 and heterozygous. Several STR loci are tested to create a genetic profile for the perpetrator and for any other relevant persons, such as the victim

few cycles, some long strands are created, but eventually the region bounded by the two primers becomes the overwhelmingly predominant product. This thermal cycle is repeated about 30 times to create an enormous number of copies of the target region. It is by this method that the STR loci are targeted within a person‟s DNA and amplified so they can be ascertained by observable means, even if the original forensic sample contains very little DNA. In this case, Myers used the Profiler Plus and COfiler kits and the Prism 310 Genetic Analyzer (the 310 Analyzer), all manufactured by Applied Biosystems, Inc. (ABI), to analyze the 13 STR loci, which had been chosen by the scientific community as the core loci for STR analysis, as well as the X and Y chromosomes for sex identification. At trial, defendant challenged the admissibility of the DNA evidence and requested a hearing pursuant to Kelly, supra, 17 Cal.3d 24. The Kelly test is an evidence-screening device for sophisticated scientific evidence that tends to be highly convincing, but not readily understood by lay jurors. (Pizarro II, supra, 110 Cal.App.4th at p. 555.) “In the Kelly review process, the trial judge serves as gatekeeper, allowing only evidence that is sufficiently reliable and trustworthy to reach the jurors.” (Ibid.) Because of the immense power of scientific evidence, the Kelly test goes to the admissibility, not the weight, of the evidence. (Kelly, supra, at pp. 30-32.) Kelly explained its three-prong test as follows: “(1) the 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. [Citations.] [(3)] Additionally, the proponent of the evidence must demonstrate that correct scientific procedures were used in the particular case. [Citations.]” (Kelly, supra, 17 Cal.3d at p. 30; Venegas, supra, 18 Cal.4th at p. 78.) In defendant‟s 105-page Kelly motion to exclude the DNA evidence, he argued that (1) a first-prong hearing was required (a) on the general acceptance of the mixture

that decision is affirmed on appeal by a published appellate decision, the precedent so established may control subsequent trials, at least until new evidence is presented reflecting a change in the attitude of the scientific community.” (Kelly, supra, 17 Cal.3d at p. 32; Venegas, supra, 18 Cal.4th at p. 53.) Thus, a defendant is not foreclosed from showing that a scientific test has since been invalidated or that there has been a change in the consensus of the scientific community concerning the test. (People v. Allen (1999) 72 Cal.App.4th 1093, 1100-1101; People v. Smith (1989) 215 Cal.App.3d 19, 25.) We independently review the trial court‟s first-prong rulings on general acceptance. (Venegas, supra, 18 Cal.4th at p. 85.) “[I]n reviewing the scientific acceptance of [a method] de novo under Kelly, we are not required to decide whether [it] is „reliable as a matter of “scientific fact,” but simply whether it is generally accepted as reliable by the relevant scientific community.‟ [Citation.]” (Ibid.) C. Refusal to Hold First-Prong Kelly Hearing* Defendant contends the trial court erred in refusing to hold a first-prong Kelly hearing. He concedes that the exact type of testing performed in this case, including use of the Profiler Plus and COfiler kits and the 310 Analyzer, had already been found generally accepted under Kelly‟s first prong by People v. Smith (2003) 107 Cal.App.4th 646, 671-672 (Smith) (analysis of mixed DNA sample “by means of short tandem repeats utilizing Profiler Plus and COfiler in conjunction with the … 310 Genetic Analyzer is accepted by the scientific community”) and People v. Henderson (2003) 107 Cal.App.4th 769, 776, 789 (Henderson) (in STR analysis, using Profiler Plus and COfiler kits in conjunction with the 310 Analyzer, capillary electrophoresis is generally accepted by scientific community), but he claims the evidence he presented to the trial court undermined the continuing reliability of the STR technology and revealed a change of consensus within the scientific community concerning the technique. He explains that * See footnote, ante, page 1.

of those questions constitutes a prerequisite to admissibility under the third prong of Kelly.” (Venegas, supra, at pp. 78-81.) Although Kelly‟s first two prongs apply to a new scientific procedure (Kelly, supra, 17 Cal.3d. at p. 30), the third prong applies even to evidence derived from a long-standing scientific procedure that has already been found to have attained general acceptance. (Venegas, supra, 18 Cal.4th at p. 79 [whether specific steps in FBI‟s analysis were in compliance with long-standing and accepted methods presented questions of correct scientific procedures properly considered under third prong].) “The Kelly test‟s third prong does not, of course, cover all derelictions in following the prescribed scientific procedures. Shortcomings such as mislabeling, mixing the wrong ingredients, or failing to follow routine precautions against contamination may well be amenable to evaluation by jurors without the assistance of expert testimony. Such readily apparent missteps involve „the degree of professionalism‟ with which otherwise scientifically accepted methodologies are applied in a given case, and so amount only to „[c]areless testing affect[ing] the weight of the evidence and not its admissibility‟ [citations].” (Venegas, supra, 18 Cal.4th at p. 81.) “„“All that is necessary in the limited third-prong hearing is a foundational showing that correct scientific procedures were used.” [Citation.]‟ [Citation.] Where the prosecution shows that the correct procedures were followed, criticisms of the techniques go to the weight of the evidence, not its admissibility. [Citations.]” (People v. Brown (2001) 91 Cal.App.4th 623, 647 (Brown).) Similarly, where there is substantial evidence showing both that procedures were followed and that they were not followed, the question is one for the jury to resolve. (Venegas, supra, 18 Cal.4th at p. 91.) But where defense evidence establishes a failure in procedure, and that failure is not contradicted by substantial evidence, then the evidence produced as a result of that incorrect procedure is inadmissible. (See id. at pp. 91-93.)

swab in this case had been contaminated with sperm from defendant‟s underwear, especially with the large amount of sperm on the swab. And if someone had contaminated the swab by dipping it into fresh semen, it probably would contain even more sperm than it did. On direct examination, Myers explained that in the next step of the analysis, he returned the swab material to the tube with the cellular material. He added various chemicals, including an enzyme to break open the cell membranes and lyse the non- sperm cells (i.e., the vaginal epithelial cells), but not the hardier sperm cells After a two- hour incubation at a high temperature, Myers shook the swab material again, removed it, and stored it in the freezer. After centrifugation of the tube, a cell pellet was formed with a solution above it. Myers expected the cell pellet to contain sperm cells and the solution above it to contain the lysed epithelial cells and their contents (including DNA). After he removed and saved the solution, Myers examined the cells in the pellet and realized the pellet contained some epithelial cells that had not been lysed. He repeated the lysing procedure, after which it appeared all the epithelial cells had been lysed. To the sperm cell pellet, Myers added chemicals, including dithiothreitol (DTT), to lyse the hardier sperm cells. After this step, Myers had two solutions of lysed cells, one containing epithelial cell DNA and the other containing sperm cell DNA. He extracted the DNA from the solutions and quantitated how much DNA was in each extraction. After Myers removed the cells from the vaginal swab and attempted to separate the epithelial cells from the sperm cells, he used ABI‟s Profiler Plus and COfiler kits to amplify 13 STR loci and a sex identification locus. The kits included fluorescent primers specific to areas on the DNA containing the STR loci. Myers tested the samples in this case separately from samples in any other case. After PCR, Myers separated the PCR products (DNA pieces) by size with the 310 Analyzer, a capillary electrophoresis instrument. The solution containing the various

PCR products was loaded (injected) at one end of the capillary tube and the pieces of DNA traveled through a polymer in the tube, drawn by an electrical charge. DNA pieces of the same size traveled together, and each piece‟s fluorescent tag was recorded as it passed a laser window. The 310 Analyzer measured the amount of time until the DNA pieces reached the laser window, which reflected their lengths, and also the amount of fluorescence they generated, measured in relative fluorescence units (RFU), which reflected the number of copies of each length. Samples of a known allelic ladder (standardized pieces of DNA of various known sizes) and controls were also analyzed for comparison. GeneScan and Genotyper software, also manufactured by ABI, analyzed these data to estimate the length of the DNA pieces and the number of repeats in each piece. The software produced an electropherogram, a graphical display with colored peaks rising from a baseline, and assigned to each peak a number of repeats (made an “allele call”) and an RFU count. On cross-examination, Myers explained that with GeneScan the analyst could set an RFU below which peaks would not be identified. This eliminated peaks that were consistent with stutter, a phenomenon where an extra, shorter copy of an allele is copied during PCR, in addition to the correct copy. This shorter copy is usually one repeat unit (e.g., four nucleotides) shorter than the correct copy. When GeneScan‟s threshold filter was turned off, the peaks below the threshold would reappear. ABI recommended using a threshold of 150 RFU and, below that, interpreting with caution. The DOJ‟s threshold was 75 RFU, but Myers generally set the threshold at 50 RFU for completeness, especially with mixed samples. He did, however, only call or identify alleles that were at least 75 RFU. After GeneScan detected and labeled all peaks above the 50 RFU threshold, Genotyper examined those peaks a second time and removed the labels if one of the two peaks at a locus was less than 15 percent the height of the other, a situation that supported a finding of stutter.

mixture to reveal the major contributor‟s alleles. This mixture interpretation was consistent with DOJ protocols and procedures. On cross-examination,34 Myers explained that it was because of the potential variability in PCR that he amplified the DNA in this case three additional times to ensure that the imbalances he saw in the mixture the first time were not due to a rare occurrence, as he explained below. He injected the results of each amplification into the 310 Analyzer twice, creating eight electropherograms. He calculated peak height ratios at each locus by setting the highest peak as 100 percent and determining the percentage of this height for the other peaks. Then he averaged the peak height ratios of the eight injections. Myers stated that the DOJ‟s STR protocol did not mention using an averaging method. Nor did he think either the ABI user manual or the FBI‟s STR protocol mentioned it. Myers had not seen anyone average profiles in the manner he had in this case. Myers explained that STR mixtures are inherently more difficult to interpret than single-source samples. The results from a single-source sample represent the profile from a single person, but in a mixed sample, where the composition of the mixture may be unknown, there may be ambiguity regarding which alleles come from which person. Theoretically, a person‟s two alleles at a locus should amplify consistently and in exactly equal numbers, producing two peaks of equal height and a peak height ratio of 100 percent. In reality, the two alleles are usually well-balanced with a peak height ratio of at least 70 percent (the height of the shorter peak is at least 70 percent the height of the taller peak). But more peak variability and imbalance can occur for various reasons, and they greatly complicate mixture interpretation. Myers explained that although the mixture in this case contained three alleles at the D3S1358 locus, he determined that one peak was not the major contributor‟s because it was only about 20 percent of the shorter major peak. With an intimate sample such as 34 Until otherwise noted, the following facts were elicited during cross-examination.

e. Allelic Dropout and Null Alleles Myers explained on cross-examination that if the PCR amplification process itself does not occur equally at both alleles, the peak heights will be different. This could occur, for example, if one allele gets a jump-start in the amplification, or if one allele cannot be amplified as effectively as the other due to a sequence variation that prevents a PCR primer from annealing properly to the template DNA. The most extreme form of allele or peak imbalance occurs in the null allele phenomenon, a fairly rare event in which one of the two alleles simply does not amplify and therefore does not appear as a peak on the electropherogram (the allele “drops out”). The phenomenon is fairly rare because most people have the same sequence in these regions, but occasionally people will have a single base difference in the sequence. The sequence difference can affect the binding of a PCR primer to the template DNA‟s primer binding site in a critical way, such as when the mismatch occurs at the end of the primer where DNA extension will be initiated. If the instability is great enough to prevent copying of that allele, the missing peak will suggest that the allele does not exist. Myers believed null alleles occurred in about one in 1,000 profiles. He explained that null alleles are more common at certain loci. He was aware that null alleles had been found to occur more commonly at the D8S1179 locus in the Chamorro population. Myers was familiar with the studies demonstrating that ABI kits and Promega kits produced different null allele results. In some cases, one kit amplified one allele and the other kit amplified two alleles, either balanced or imbalanced. Defense counsel asked whether this could lead to a missed exclusion if, for example, the perpetrator were not really a homozygous 8,8 at the TPOX allele and thus defendant‟s 8,8 would not be a match. Myers responded: “But the person who would have that sample would still type as this same result using this kit. So as long as everyone is typed with the same kit there wouldn‟t be any false result because the result would be the same.” Defense counsel pursued the topic and the following exchange took place:

to its use. The DOJ‟s validations went beyond that required by internal validation. Some of the DOJ‟s studies, including those for the validation of the Profiler Plus and COfiler kits, were consistent with developmental validation, and the results of those studies were ultimately presented at a scientific meeting. With the Profiler Plus and COfiler kits, the DOJ analysts made very few deviations from ABI‟s guidelines, and none that changed the fundamental procedure. Those changes were incorporated into the DOJ‟s written procedure. For example, the DOJ‟s interpretation guideline required a certain RFU as an absolute minimum, whereas ABI‟s guidelines allowed interpretation with caution below a certain level. Also, the DOJ performed “smoothing” of the data at a different level, which was recommended by ABI‟s employees for experienced analysts. In general, the DOJ analysts maintained a lot of contact with ABI. The DOJ analysts validated the smoothing level, but they already knew it was beneficial. As a part of the DOJ‟s accreditation, external reviewers examined the lab‟s validations and determined whether they were sufficient to justify the use of the test. The reviewers informed the DOJ if they believed the validation was insufficient. On cross-examination, Myers again addressed the deviations the DOJ had made for using the Profiler Plus and COfiler kits. First, the lab‟s interpretation guideline required an absolute minimum of 75 RFU, whereas ABI‟s guidelines allowed interpretation with caution below 150 RFU. Second, the lab lengthened the final extension of the PCR thermal cycling from 45 minutes to 90 minutes, based on validation experiments conducted in the lab that showed some PCR products were otherwise not copied to full length. This was especially the case when the reaction contained more than the optimum amount of DNA. The extra extension time on the final cycle allowed extension to finish and adenylation (addition of a final adenosine nucleotide) to occur. Third, the lab performed light smoothing of the data, rather than heavy smoothing. ABI‟s user manual recommended heavy smoothing, which resulted in more rounded, gradual

peaks, rather than sharp, pointed peaks on the electropherogram. ABI‟s employees, however, recommended to Myers that more advanced analysts use light smoothing because those analysts could differentiate spurious peaks from others. The lab validated the light smoothing and determined it was a better method. Myers believed ABI‟s new user manual now recommended light smoothing. Myers reiterated that the DOJ conducted internal validation studies on the Profiler Plus and COfiler kits before they were used in casework. These studies did not include stutter percentages. Instead, the DOJ relied on ABI‟s work on stutter percentages. Myers agreed that stutter percentages had varied some in different studies, but the key for most labs was the determination of how conservative they wanted to be with their thresholds. j. Proficiency Testing* Myers had undergone at least 20 proficiency tests for the STR procedure. The proficiency tests were both internal and external, although he was aware he was being tested. Myers explained that blind proficiency testing requires that no one in the lab, including the supervisors, know the testing is occurring. This type of testing is very difficult to implement. The DOJ lab had voluntarily participated in a feasibility study regarding implementation of blind proficiency testing many years prior to this hearing. The lab got the correct result in the test. The study, however, ultimately determined that blind proficiency testing would be very difficult to implement on a large scale. Myers explained that the DOJ was audited by the American Society of Crime Laboratory Directors Laboratory Accreditation Board (ASCLD/LAB) and also by the DNA Advisory Board Standards (also known as the FBI Standards) because the lab received federal funding as part of the database program. ASCLD/LAB accredited labs throughout the world, and its accreditation meant the lab was following its minimum standards in areas such as quality assurance, work validation, and training of personnel. * See footnote, ante, page 1.

c. Vaginal Swab* On cross-examination, Sensabaugh outlined the correct scientific procedure for determining whether semen is present on a vaginal swab. First, a portion of the swab is extracted in saline or TRIS buffered solution. A small portion of that solution is put on a slide and stained with “Christmas tree” stain, which stains sperm heads and tails different colors. The sperm are then examined under a microscope and counted per microscopic field. The extent of bacterial contamination and the presence of epithelial cells (usually vaginal) can be observed. If no sperm are observed, an acid phosphatase or P30 test can be performed to determine the presence of semen. A negative P30 test indicates either that no semen is present or that the threshold is below the level of detection. Sensabaugh reviewed Frausto-Heredia‟s June 20, 1989 letter to the FBI lab. In it, she stated she was submitting three of the four vaginal swabs to the FBI. She stated she had tested the fourth one with the following results: “(+) Acid Phosphatase, (-) P30 Rocket, NR on Enzyme Analysis, did detect foreign antigen[.]” Sensabaugh explained that the positive acid phosphatase result indicated the presence of an enzyme that is found at very high levels in semen. Sensabaugh did not know what threshold Frausto-Heredia used, but he assumed she diluted the semen in the range of one in 100 to one in 1,000. Sensabaugh explained that the rocket electrophoresis method is one of the less sensitive and more problematic P30 tests, and it is possible that semen was present below the test‟s level of detectibility. He assumed the “NR” meant no result on the enzyme assay, and he assumed the test was PGM typing. If the semen sample had been diluted, or if a substantial amount of the semen was no longer present in the vagina, PGM typing would be problematic. Further, PGM degrades in the vaginal environment, and possibly an insufficient amount was recovered from the swab. Frausto-Heredia did not identify the foreign antigen she detected, but Sensabaugh assumed she was referring to ABO activity. * See footnote, ante, page 1.

Sensabaugh also explained it was good scientific procedure for Myers to perform replicates and average the results of those replicates, even though the lab‟s protocol did not mention these steps. A protocol provides the basic outline and framework of the analytical procedure, but it is not limiting. Rather, it is a baseline from which the analyst works. A protocol should not prohibit things ordinarily done in the course of scientific work. When an analyst encounters a situation that requires something extra to be done, it is good science to do that extra thing. A guideline “does not constrain one from thinking.” Sensabaugh explained that the electropherograms in this case demonstrated that the sperm fraction contained more than two peaks at some of the loci, indicating the presence of a mixture. To determine the extent of variation, Myers repeated the amplifications and injections, and averaged the results. The lab‟s protocol did not require this, but it was good science to try to get the clearest and most reproducible answer on the composition of mixtures. Sensabaugh had seen other analysts average results. Sensabaugh explained that averaging takes into account experimental variation that always occurs, providing a more accurate estimate of the true value than any single measurement. Thus, when multiple measurements have been made, the better technique is to determine both the average and the variance to get the best estimate of the true value and the precision of the measurements. If the variance is very large, the average of the measurements is not very accurate and there may be a problem with the measurements, whereas consistent results across multiple replications give the analyst confidence that the result is sound. Looking at each independent analysis separately does not provide the same level of confidence that the results are consistent. Sensabaugh reviewed each of Myers‟s eight runs independently to assess whether any different result would be obtained with any one of the runs, and he determined that the eight individual runs gave essentially the same results as the average of those runs,

work and statistical calculations in this case, Sensabaugh believed Myers followed proper procedures and obtained scientifically sound results. On cross-examination, Sensabaugh stated that the results were entirely interpretable as a mixture of two contributors, one of which was the female from whom the sample was collected. This conclusion was based on a comparison with the epithelial cell fraction, which yielded a genetic profile that was seen at a low concentration in the sperm cell fraction. Sensabaugh examined the peak heights at each loci and determined that Myers‟s opinions of major and minor contributors were justified. Sensabaugh explained that Myers entered the data, then used software to apply the NRCII formulas and perform the calculations for the frequency of the profile in three major ethnic populations. Sensabaugh verified that the algorithm used by the lab was the correct computational format. f. Same Length but Different Sequence Alleles Sensabaugh stated that he believed sequencing of STR alleles was rarely, if ever, done. The probability that two genetically different people would match at 13 STR loci is almost infinitesimal. And sequencing is not an efficient method. The payoff is much greater by testing additional STR loci. On cross-examination, Sensabaugh explained that it was well known in the field of human genetics that, among people, some STR alleles contain different sequences even though they are the same length. Sensabaugh was aware that several alleles used in STR analysis had been found to show this sequence variation. STR analysis, however, is based only on allele length, not sequence. The concept of sequence variation had been studied for a long time, beginning in the days of RFLP testing, which also compared DNA fragments by length rather than sequence. Sensabaugh agreed that if two samples have different sequences at the same locus, then the DNA samples come from two different people. And he agreed that if even one of defendant‟s alleles was found to be a

On June 12, Frausto-Heredia examined the vaginal and penile swabs. First, she removed the victim sexual assault kit from the refrigerator portion of the evidence vault. The four vaginal swabs were together in one envelope. She tested one swab for acid phosphatase and got a positive result. She explained that acid phosphatase is present in high levels in seminal fluid and in low levels in other body fluids, such as vaginal secretions. A positive acid phosphatase test is presumptive for semen. Frausto-Heredia also tested the swab for the presence of the P30 protein, also presumptive for semen, but got a negative result. Frausto-Heredia also tested the swab for PGM, another highly unstable protein found in seminal fluid. She was not surprised to get no results. She explained that these three unstable proteins degrade quickly. They begin degrading immediately inside a deceased victim, and they degrade quickly when the sample is not stored properly, such as when the sample is not air dried or not stored in a paper bag. Sperm cells, by contrast, are extremely stable. Frausto-Heredia could not estimate the number of sperm that would be collected 12 hours after ejaculation. She explained there were too many variables, including how much of the sample was collected. For example, nurses tended to collect more of the sample pooled in the cervix, whereas coroners tended to collect less by swabbing the vagina. In a deceased victim, the seminal fluid immediately begins to degrade, whereas the sperm does not degrade quickly. In her cases, Frausto-Heredia had observed between zero and hundreds of sperm per slide. After Frausto-Heredia examined the vaginal swabs, she returned them to the victim sexual assault kit and placed the kit back in the refrigerator portion of the evidence vault. At this point, Frausto-Heredia replaced the paper cover on her work surface. Then she removed the suspect sexual assault kit from the refrigerator portion of the evidence vault and tested defendant‟s penile swab for acid phosphatase. The result was negative.

further argues that Myers‟s testimony failed to establish that he followed generally accepted methods to avoid contamination when he tested the DNA on the vaginal swab. We agree with the trial court that these issues fall outside of Kelly‟s third prong. As Venegas explained, “[s]hortcomings such as mislabeling, mixing the wrong ingredients, or failing to follow routine precautions against contamination may well be amenable to evaluation by jurors without the assistance of expert testimony.” (Venegas, supra, 18 Cal.4th at p. 81.) Contamination is a concept readily comprehensible to jurors for their evaluation and weighing at trial. (Venegas, supra, 18 Cal.4th at p. 81.) Thus, it is an issue going to weight, not admissibility, and the trial court did not abuse its discretion in so concluding. At trial, the jury was presented with ample evidence regarding the collection, handling, and testing of the vaginal swab, defendant‟s clothing, and other items, from which the jury could weigh the value of the resulting biological evidence. Moreover, we disagree with defendant that the Kelly record suggests contamination occurred at any stage in this case. Indeed, the evidence supported the contrary conclusion. Myers testified that the vaginal swab contained far too much sperm to have been transferred by contamination. He explained that dried vaginal swabs are not prone to contamination. He thought the defense‟s contamination scenario was unlikely in any lab, even one in the 1980‟s. He also explained the procedures he followed to eliminate or reveal contamination in the lab, on his own work bench, and in his PCR reactions. The controls he used in this case revealed no evidence of contamination. He explained that the reports of contamination presented by the defense were not connected with this case, his own work, or lab-wide contamination. Similarly, Sensabaugh testified that the large amount of sperm on the vaginal swab was not consistent with contamination. He could hardly imagine how contamination could transfer that amount of sperm and he considered an inadvertent transfer very unlikely. Sensabaugh explained that Myers could not have contaminated the vaginal

is extremely unlikely to exist in a person whose alleles match in length at a certain number of loci. We see the obvious value of null allele recovery in parentage and other familial testing (e.g., to identify parents, missing children, ancestors, and the remains of victims), which relies on the elucidation of familial relationships despite mutations that might have occurred between generations. And we see the value of null allele recovery when comparing DNA profiles that have been created with different primer sets (e.g., kits from different manufacturers). But we think the value of null allele recovery within a criminal case—where the purpose is to determine whether two DNA samples come from the same person—is a more complicated issue. If the ultimate test of identity between two DNA samples is the identity of their sequences, then methods that suppress or mask sequence differences may not be appropriate in the criminal context. It is our hope in discussing these issues that the scientific community will reexamine the possible effects and management of allelic dropout in criminal cases and determine how best to safeguard the innocent while incriminating the guilty. e. The Present Case In this case, Myers‟s opinion was that allelic dropout would not cause a false result because “the person who would have that sample would still type as this same result using this kit. So as long as everyone is typed with the same kit there wouldn‟t be any false result because the result will be the same.” Myers did not expressly refer to the samples coming from the same person, as Butler and the other authors do in the excerpts above. But if Myers‟s opinion was also based on the assumption that defendant and the perpetrator were the same person—that defendant was guilty—then it was based on an incorrect legal theory. And, if so, the opinion did not constitute substantial evidence that allelic dropout did not cause, or could not have caused, a false match in this case. (Corrales v. Corrales (2011) 198 Cal.App.4th 221, 226 [“An expert‟s opinion that assumes an incorrect legal theory cannot constitute substantial evidence”]; Exxon Corp.

v. Superior Court (1997) 51 Cal.App.4th 1672, 1683 [“court is not bound by an expert opinion that is speculative or conjectural or that is based on an incorrect legal theory”]; Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135 [“The value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed”; “Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value”]; see also Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771 [“„A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered‟”].) Assuming, without deciding, that Myers‟s opinion was flawed and the trial court abused its discretion in not excluding it, we consider whether it is reasonably probable that the verdict would have been more favorable to defendant in the absence of the error. (People v. Prieto (2003) 30 Cal.4th 226, 247 [erroneous admission of expert testimony reviewed under Watson standard]; Venegas, supra, 18 Cal.4th at p. 93; Watson, supra, 46 Cal.2d. at p. 836.) Had the trial court excluded Myers‟s opinion, the remaining evidence on this topic would have constituted the following: The sperm fraction electropherograms showed single peaks at three loci—vWA, TPOX, and CSF1PO. Myers explained that all of these single peaks were of great enough height that he saw no reason to suspect, based on peak height, that a second allele had dropped out.50 He also noted that although some degradation of the DNA had occurred in this case, it was not sufficient to concern him. Furthermore, allelic dropout is a rare phenomenon, occurring at a frequency of about 0.1 percent.51 Even without Myers‟s potentially flawed opinion,

incriminating, even though less so than a 13-loci match. We conclude there is no reasonable probability of a more favorable verdict without Myers‟s opinion and even without the three apparently homozygous loci. Any error was harmless. (People v. Prieto, supra, 30 Cal.4th at p. 247 Venegas, supra, 18 Cal.4th at p. 93; Watson, supra, 46 Cal.2d. at p. 836.) III. AGREEMENT OF FACTS COMPRISING MURDER* The trial court instructed the jury on two theories of first degree murder: premeditation and felony murder. Defendant contends the trial court violated his Sixth Amendment right to a jury trial when it permitted the jury to convict him of murder without agreeing on the facts that comprise the offense. In Schad v. Arizona (1991) 501 U.S. 624, 630-645 (Schad) and Walton v. Arizona (1990) 497 U.S. 639, 648 (Walton), overruled on another ground by Ring v. Arizona (2002) 536 U.S. 584, 609 (Ring), the United States Supreme Court held that federal courts would defer to states‟ definitions of the elements of offenses, and juror unanimity was not required as to the factual theory for a conviction. The California Supreme Court has explicitly held that “jurors need not unanimously agree on a theory of first degree murder .…” (People v. Nakahara (2003) 30 Cal.4th 705, 712 (Nakahara).) Defendant argues that the United States Supreme Court‟s decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Ring have undercut the basis for Nakahara. In Ring, the court overruled Walton “to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty.” (Ring, supra, 536 U.S. at p. 609.) However, neither Ring nor Apprendi mentioned Schad. Furthermore, in Nakahara, the California Supreme Court rejected the argument that Apprendi called into question former rulings that unanimity instructions are not required when a jury is instructed on different theories of first degree murder. * See footnote, ante, page 1.

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