P. v. Nawi 12/21/04 CA1/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A096635

Case Date: 04/20/2005

Preview:Filed 12/21/04 P. v. Nawi CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE THE PEOPLE, Plaintiff and Respondent, v. ROBERT NAWI, Defendant and Appellant. Defendant was convicted of first degree murder and sentenced to 26 years to life in state prison. The most significant evidence connecting defendant to the homicide consisted of DNA material on the victim's fingernails that matched defendant's own DNA profile. Not surprisingly, defendant raises, along with other claims of error, numerous challenges to the admissibility of the DNA evidence. We find no prejudicial error, and we affirm the judgment of conviction. I. FACTS A. THE 1987 MURDER On Thursday, October 29, 1987, the police responded to an anonymous telephone report of a robbery and possible murder at 966 Brussels Street in San Francisco. The caller was an older male with an undistinguished voice. The police discovered the body of Virginia Lowery on the floor of the garage of her home. She had been stabbed 34 times with an ice pick in the head, neck, and upper body and had been killed at least a day or more earlier, possibly as early as Sunday, October 25. There were no signs of a A096635 (San Francisco County Super. Ct. No. 176527)

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struggle, and the medical examiner concluded Virginia Lowery may have been knocked out and then stabbed. The police met with Virginia Lowery's sisters and brother at the Brussels Street house to see if anything seemed out of place. The rooms did not appear to be ransacked or disturbed. Virginia Lowery's curio cabinet containing art pieces and collectibles was intact. Her purse with money inside was on the sofa. Her jewelry boxes were undisturbed. And jewelry worth hundreds of thousands of dollars was still in the safe. Her Cadillac was in the garage. There were no signs of forced entry. The front door was locked. Virginia Lowery often left the sliding glass door from the living room to the deck partially open to let in fresh air, and that door was found slightly ajar. The screen door was locked, but the screen was slightly pulled away from the frame beside the lock. Virginia Lowery's back neighbor later reported that a portion of her adjoining fence was broken as if someone jumped over the fence into Virginia Lowery's backyard. Virginia Lowery had apparently been ironing clothes when she was attacked. An ironing board was set up in the garage and an iron was found on the floor with its cord cut. The cord from the iron was wrapped around Virginia Lowery's neck. Virginia Lowery's sister talked to her on Sunday evening, October 25, and invited her to dinner. Virginia declined the invitation and said she was ironing. She did not answer her telephone after that. She did not show up on Monday, October 26, to volunteer at her grandniece's school. Virginia Lowery was married to William Lowery, who was a convicted robber and an admitted heroin dealer living in Mexico. He had moved there in 1984 in order to avoid drug enforcement authorities. Virginia Lowery was about two years away from retirement and planned to move eventually to Mexico to join her husband. After being notified of his wife's death, William Lowery returned to San Francisco on Friday, October 30, 1987. During interviews with the police, he reported that his wife's jewelry box was missing along with a gun. The police did not believe that there had been a theft.

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By all accounts, Virginia Lowery was fastidious and kept herself and her house immaculate. The police found the garage to be inordinately clean. The car and the water heater had only a very fine layer of dust on them. However, the police located latent fingerprints on the left rear and right rear bumper of Virginia Lowery's car near the body. More fingerprints were found on the side of the water heater, even closer to the body. The identity of the fingerprints could not be determined at the time, but the latent prints were stored in a computer database for unsolved crimes. Over 10 years after the murder, in April 1998, a San Francisco police technician discovered that the latent prints lifted from Virginia Lowery's water heater matched the fingerprints of defendant, who had been arrested that month in San Francisco at the request of a bartender. 1. The 1988 Drug Investigation In 1988--within a year after Virginia Lowery's murder--defendant was arrested on federal drug charges under the name Robert Wells, aka Sam Zanca. He pled guilty, and was sentenced to 10 years in federal prison. The San Francisco homicide investigators were unaware at the time of the investigation by the federal Drug Enforcement Administration (DEA), but the connections to the murder of Virginia Lowery later came to light. The events leading to defendant's drug conviction are as follows: On August 13, 1988, defendant's wife was stopped for erratic driving. She identified herself as Wendy Dietzel and said her husband was Sam Zanca. She was driving Virginia Lowery's brown Cadillac and had a pink slip showing transfer of ownership to Rosanna Gironda (Wendy Dietzel's alias) and Sam Zanca. In the car were identification papers, including passport applications, for a man with several aliases, including Sam Zanca, Timothy Vahanian, and John Ronck. Also found in the car were several safe deposit keys. Two days later, with Dietzel's consent, a DEA agent opened one safe deposit box at the Bank of America in San Francisco and found 650 grams of uncut heroin. That safe deposit box had been rented in 1988 to Rosanna Gironda and Sam Zanca with a residence address on Rausch Street in San Francisco.

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A month later, in September 1988, defendant was stopped by a customs official at the Vancouver airport, because he had two airline tickets in his possession, one in the name of David Johnson and another in the name of S. Zanca. Defendant also had fresh-looking scars on his face and did not look like his passport photo. Canadian authorities brought defendant to the United States and turned him over to DEA agents, who arrested him on federal drug charges. Further investigation showed that Sam Zanca had a second Bank of America safe deposit box and that on the morning of October 26, 1987, (three days before Virginia Lowery's body was found) Sam Zanca signed an entrance ticket for that box. The safe deposit box rental application by Sam Zanca, a passport application by Sam Zanca, and a check to Itel Travel signed by Sam Zanca all gave the same address on Rausch Street in San Francisco. A notebook seized from defendant contained a telephone number for David Lowery as well as a phone number for "Bill" in Mexico. 2. The 1998 Renewed Murder Investigation In May 1998, after the discovery that defendant's fingerprints matched the fingerprints in Virginia Lowery's garage, San Francisco homicide inspectors Gordon and Cashen met with defendant at his apartment on Van Ness Avenue in San Francisco and surreptitiously tape recorded an interview with him. Defendant denied knowing anyone named Bill or being in Virginia Lowery's home. He claimed he had been living in Thailand from 1987 or 1988 until just a few months before the interview. He acknowledged owning a house on Rausch Street in San Francisco that he sold in 1988. He admitted that he had used over 20 aliases and that he had been a heroin dealer. As part of their renewed investigation, Inspectors Gordon and Cashen requested a DNA analysis of the fingernails of Virginia Lowery, which had been clipped during the autopsy and preserved as evidence. After learning that foreign DNA was present on the fingernails, the police obtained a warrant to retrieve a sample of defendant's DNA. But when they attempted to serve the warrant they found that defendant had quit his job and moved from his San Francisco apartment. A few weeks later, the police learned that

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defendant was in custody in Florida, and they arranged to have defendant's DNA samples retrieved there and sent to San Francisco for testing. Two independent forensic examiners conducted DNA testing of Virginia Lowery's fingernails and discovered that at least three people had contributed to the fingernail sample. Both examiners concluded that the major contributor to the mixture was male, and both examiners derived the same DNA profile for that major contributor. That DNA profile matched the DNA profile from defendant's sample, and the chances of finding someone with that DNA profile was 1 in 567 billion or less. Defendant's address book, obtained by Florida authorities, showed an entry for David Lowery and for Jack Colevris at 966 Brussels Street.1 The police also obtained telephone records showing calls in 1998 from defendant's mother's phone in Massachusetts to William Lowery's son, David Lowery, and to William Lowery's number in Mexico. The police tried to contact William Lowery, then age 70, but they were informed by Lowery's attorney that he had had a stroke and would not be returning to San Francisco. A few days later, however, William Lowery voluntarily appeared at the police department for an interview. He denied knowing defendant and gave the police the names of several drug dealers he believed could have killed his wife. Later, in 2000, William Lowery underwent a conditional examination in his home in Mexico--in the presence of a district attorney and defendant's counsel. He then admitted knowing defendant. A forensic document examiner compared the signature of Sam Zanca that appeared on the safe deposit box entrance ticket for October 26, 1987, with the signatures of Sam Zanca that appeared on four other documents: two separate passport applications from 1987 (with the applicant's photograph), a statement from 1987 for a lost passport, and the 1988 safe deposit box rental agreement. The expert concluded that the same person "very probably" signed the documents.

Jack Colevris moved into the house after Virginia Lowery's death to serve as a caretaker. 5

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3. Alibi Defense William Lowery in his conditional examination provided an alibi for defendant, asserting that defendant had been visiting him in Mexico until one or two days before Lowery got the phone call about his wife's death. Lowery denied any personal involvement in his wife's murder. He testified that defendant (known to him as Sam Zanca) had come to Mexico in October 1987 to buy drugs. Lowery introduced defendant to Salvador Ramos-Padilla, a Mexican police officer who also worked as a bodyguard for a drug dealer. Lowery recalled that defendant and Ramos-Padilla played a memorable game of pool. Ramos-Padilla also underwent a conditional examination in Mexico. He died before trial, and the transcript of his examination was admitted into evidence. RamosPadilla recalled a memorable game of pool with defendant that occurred in October 1987. Ramos-Padilla also recalled that defendant left William Lowery's house before the other houseguests. Harry Banis, a friend of William Lowery and Jack Colevris, also recalled being in William Lowery's house in Mexico in October 1987. He remembered a game of pool between a Mexican police officer and one of the other houseguests. He did not remember defendant. Jack Colevris testified that he and Harry Banis and defendant (known then as Sam) flew together to Mexico in mid-October 1987 to stay with William Lowery. Defendant played pool with a Mexican police officer and won the officer's gun in the game. Defendant left Lowery's house about a day or two before William Lowery got the telephone call about his wife's death. William Lowery had a room in the basement off the garage at 966 Brussels Street where he socialized with his friends and transacted business involving drugs and stolen goods. His wife Virginia was not aware of what was transpiring in the basement room. Lowery testified that defendant had never been in the Brussels Street house before the murder, though he did help Lowery load his car when Lowery returned to Mexico three months after the murder. Jack Colevris, however, testified that defendant had been in 6

Lowery's house before the murder a few times to have drinks and as recently as two weeks before the murder.2 Lowery further testified that his son David dealt drugs with defendant. Jack Colevris gave similar testimony. Lowery testified that in 1998 defendant came to Mexico and stayed with him. Defendant told Lowery at that visit that he was wanted on a murder charge. Defendant stayed about a month with Lowery and then left for Florida to get a boat to Thailand. As part of his defense, defendant presented expert witnesses to refute the prosecution's experts on DNA, fingerprints, and handwriting evidence. II. DISCUSSION A. ADMISSIBILITY OF DNA EVIDENCE Under the rule of admissibility announced in People v. Kelly (1976) 17 Cal.3d 24 (Kelly), expert testimony based upon a new scientific technique requires a three-pronged preliminary showing by the proponent of the evidence : (1) the reliability of the method (the general acceptance of the method in the scientific community); (2) the qualifications of the expert to give an opinion on the subject; and (3) the correct use of scientific procedures in the particular case.3 In the present case, after defendant raised a pretrial objection to the admissibility of the DNA evidence, the trial court held an extensive 48-day hearing (spanning the months from June 2000 to April 2001) focusing on "prong three" of the Kelly rule. The

Virginia Lowery's niece was married on October 10, 1987, and William Lowery came from Mexico to attend the wedding. He returned to Mexico on October 13 (12 days prior to the probable date of the murder, October 25). William Lowery and Jack Colevris both testified that defendant accompanied them back to Mexico. 3 The Kelly court relied upon Frye v. United States (D.C. Cir. 1923) 293 F. 1013 (Frye), but the United States Supreme Court has since determined that the general acceptance test used in that case does not apply in federal trials as it is not a part of the Federal Rules of Evidence. (Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579 (Daubert).) The California rule of Kelly is unaffected by Daubert. (People v. Leahy (1994) 8 Cal.4th 587, 591; People v. Venegas (1998) 18 Cal.4th 47, 76, fn. 30 (Venegas).) 7

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court denied defendant's request for a hearing under "prong one," and no challenge is raised on appeal to that ruling. Indeed, the case law has established the scientific acceptance and reliability of the two methodologies widely employed in DNA typing. (Venegas, supra, 18 Cal.4th at p. 79 [RFLP]; People v. Morganti (1996) 43 Cal.App.4th 643, 671 [PCR-DQ-Alpha] (Morganti); People v. Wright (1998) 62 Cal.App.4th 31, 41 [PCR-Polymarker] (Wright); People v. Allen (1999) 72 Cal.App.4th 1093, 1099 [PCRSTR].) In cases following Kelly, the courts have clarified two important aspects of prong three. First, the courts have explained that the foundational showing required under prong three is substantially less than what is required under prong one. "The Kelly test's third prong does not apply the Frye requirement of general scientific acceptance--it assumes the methodology and technique in question has [sic] already met that requirement. Instead, it inquires into the matter of whether the procedures actually utilized in the case were in compliance with that methodology and technique . . . ." (Venegas, supra, 18 Cal.4th at p. 78, italics in original.) "[T]he `third-prong hearing' . . . will not approach the `complexity of a full-blown' Kelly hearing. [Citation.] `All that is necessary in the limited third-prong hearing is a foundational showing that correct scientific procedures were used.'" (Morganti, supra, 43 Cal.App.4th at pp. 661-662; People v. Barney (1992) 8 Cal.App.4th 798, 825 (Barney).) "Where the prosecution shows that the correct procedures were followed, criticisms of the techniques go to the weight of the evidence, not its admissibility." (People v. Brown (2001) 91 Cal.App.4th 623, 647.) The second aspect of prong three clarified by the courts is that the correctness of the procedures used is not the same as the quality of the performance of those procedures. Only the former is at issue under the third prong for admissibility of scientific evidence. Whether the accepted scientific procedures were used properly is a question for the jury. "`"[T]he Kelly/Frye rule tests the fundamental validity of a new scientific methodology, not the degree of professionalism with which it is applied. [Citation.] Careless testing affects the weight of the evidence and not its admissibility, and must be attacked on 8

cross-examination or by other expert testimony."'" (Wright, supra, 62 Cal.App.4th at p. 42; People v. Axell (1991) 235 Cal.App.3d 836, 862.) "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.) Defendant's objections to the DNA evidence in this case centered on the prong three requirement that correct scientific procedures be used in the DNA testing. The trial court concluded that the correct procedures were used and that defendant's multiple and inventive challenges to the DNA testing affected the weight, not the admissibility, of the evidence. On appeal, defendant purports to focus again on prong three and whether correct scientific procedures were actually utilized in this case.4 We begin our review with some necessary background on the science that underlies DNA testing. 1. The Science of DNA Testing DNA is the genetic material found in the nucleus of virtually every human cell. (Nat. Research Council, The Evaluation of Forensic DNA Evidence (1996) pp. 60-61 [hereafter, "NRC II"].) It is organized into 23 pairs of chromosomes, one chromosome in each pair being inherited from the mother and one from the father. Each chromosome is a long, double-stranded thread of DNA surrounded by other materials, mainly protein, that is shaped like a twisted rope ladder with stiff wooden steps (a double helix). The two parallel sides are composed of phosphate and sugar while the connecting rungs consist of a pair of chemical components called bases. There are four types of bases: adenine (A), Defendant makes no argument that the DNA evidence was insufficient to support his conviction. The issue before us is whether the DNA evidence should have been presented to the jury. 9
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cytosine (C), guanine (G), and thymine (T). Because of their size and complementary shape, A will pair only with T, and C will pair only with G. This pairing rule is a key to DNA typing. Once the sequence of bases on one strand is known, the sequence on the other strand is automatically known. (NRC II, pp. 12, 60-62.) The chemical bonds that hold the two bases together on a DNA molecule are weak, and the two members of a base pair easily come apart when heated, separating the DNA ladder into two single strands. Once a single strand is free and the temperature is lowered, the single strand will then pair up only with its complement (A with T, C with G). E.g., a short single-strand segment of TAGC will rejoin only with ATCG. These properties allow DNA molecules to be manipulated and identified in the laboratory. (NRC II, p. 62.) It is the sequencing of base pairs that determines the genetic differences between one person and another. There are over 3 billion base pairs in a person's DNA, but most human DNA is very similar, accounting for common traits such as two arms, a circulation system, etc. Still, any two people (except identical twins) differ in several million base pairs, and it is those differences that give rise to DNA identification. (NRC II, pp. 6263.) Forensic scientists look at particular segments of a DNA strand at particular chromosomal sites known to be polymorphic (i.e., widely varying among individuals) in order to identify the base-pair sequence. The examined segment is called an "allele," and the chromosomal site of the examined segment is called its "locus." Each person has two alleles at any given locus--one on each of the paired chromosomes, one inherited from the mother and the other from the father. The two alleles together comprise the "genotype" for that locus.5 (NRC II, pp. 13, 14, 65.)

A "gene" is a DNA segment with a variation in base pairs that provides the code for some particular trait or function such as eye color. However, much of human DNA has no known function, and the segments most often used in forensic analysis are segments with no known genetic code. Nevertheless, the segments are sometimes referred to as genes. (NRC II, pp. 13, 62-63, 65.) 10

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DNA analysis requires that the DNA first be processed to produce a DNA profile. The profile is a determination of which alleles exist at particular loci. If the DNA profile of the evidence sample (found at the crime scene) and the DNA profile of the suspect differ by even one allele, the suspect is excluded. But if the profiles match, the next step is a statistical analysis to determine how common the DNA profile is within the population. (See generally Venegas, supra, 18 Cal.4th at p. 60.) The process used in the present case is called polymerase chain reaction (PCR)--a methodology by which short segments of DNA are greatly duplicated (or "amplified") to make the particular target segment more discernible.6 (NRC II, pp. 21-23, 69-73.) After the DNA is extracted from cells in the sample, the DNA is heated to separate the DNA ladder into single strands. Then the strands are mixed with a chemical primer containing short, single-stranded DNA segments that complement and join up with particular segments of interest on the original DNA. The targeted DNA segments thereby become double-stranded. Next the enzyme TAQ polymerase is added, which recognizes and cuts off the targeted segments and causes each targeted segment to duplicate itself. This process is done in an instrument called a thermal cycler, which repeats the duplication over and over (usually through 20-35 cycles) until billions of copies of the targeted DNA segments are made. (NRC II, pp. 15-18, 66, 69-70.) Chemical kits have been developed that provide the chemical reagents to target particular DNA segments. One kit targets the DQ-Alpha marker, which is a known segment on the HLA gene on Chromosome 6. Another kit, called the Polymarker kit,

PCR testing is one of two recognized methodologies. The other--restriction fragment length polymorphism (RFLP)--measures long segments of DNA called VNTR's (variable number of tandem repeats) and requires decay of radioactive materials. The PCR method allows very small samples to be analyzed in a shorter period of time. RFLP testing has been used for a longer period and was accepted earlier by the courts. (E.g., Venegas, supra, 18 Cal.4th at pp. 76-79; Barney, supra, 8 Cal.App.4th at pp. 811-814; see generally NRC II, pp. 14-18, 65.) 11

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tests for five genes or loci simultaneously.7 (NRC II, pp. 23, 71-72.) Both the DQ-Alpha and the Polymarker tests examine short DNA segments that are approximately the same length (about 240 bases, or rungs of the DNA ladder) but are distinguished by the sequence of bases. Another type of DNA testing kit examines DNA segments that contain short, repeating sequences and vary by length (the number of repeats). The DNA segments examined by these kits are called STR's (short tandem repeats). (NRC II, pp. 23, 70.) One such kit is called the Green One and tests for STR's at 4 loci. The latest kit, at least by the time of the casework here, is called the Profiler Plus, and it tests for STR's at 9 loci. Both kits detect the sex gene. All the kits used in DNA analysis employ the same amplification process but differ in the design or sequencing of the chemical primers and in the temperature to which the DNA is subjected. (See People v. Hill (2001) 89 Cal.App.4th 48, 58 [each new PCR/STR kit need not be subjected to prong one inquiry].) Once the targeted DNA segments have been amplified, the amplified segments are then isolated and "visualized" to identify the specific alleles contained in the evidence sample and thereby to create a DNA profile. For example, there are seven different possible alleles (variations in sequence of bases) for the DQ-Alpha marker, each variation identified for convenience by number--1.1, 1.2, 1.3, 2, 3, 4.1, and 4.2. Each person has two alleles at every locus, one inherited from each parent. A person could have two different alleles at the DQ-Alpha marker (e.g., 1.1 and 1.2) or could have two of the same, if both parents contributed the same (e.g., 1.1 and 1.1). The process of visualizing or identifying the specific alleles present in the sample is complicated because the differences in the alleles cannot actually be seen, even microscopically. For the DQ-Alpha and Polymarker tests, the visualization comes in the form of blue dots lit up on a testing strip. The double strands in the amplified DNA

The five tested sites are: the Low-Density Lipoprotein Receptor, the Glycophorin A gene, the Hemoglobin Gamma Globin gene, D7S8--a "junk" gene on Chromosome 7--and the Group-Specific Component. (NRC II, p. 72.) There are two or three different alleles possible at each locus. (NRC II, p. 72.) 12

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sample are separated into single strands again, and then the amplified DNA sample is bathed onto a testing strip. The testing strip has affixed to it DNA "probes" (complementary base pair segments) for all possible alleles for each gene. A DNA strand present in the sample will join with its complement on the testing strip, and once the two strands are joined, the testing strip lights up as a blue dot to announce the presence of an allele. The labeling on the testing strip identifies by reference number the lighted allele (1.1., 1.2, etc.). For the Green One and Profile Plus kits, which test for length of sequences, the analyst uses capillary electrophoresis in an ABI 310 Genetic Analyzer to determine which alleles are present. A small quantity of the amplified DNA is placed in a thin, hollow tube that is electrically charged to stimulate the molecules to travel to the far end of the tube. Also added to the tube is a chemical that attaches a fluorescent tag to each DNA fragment. The speed at which the molecules travel demonstrates their size, as the smaller molecules travel faster. As the DNA fragments pass a "window" in the tube they are hit by a laser beam that measures and takes a picture of their fluorescence. A computer program then interprets the laser reading to give a profile of the amplified DNA based on the color of the fluorescence and the travel time. The laser reading is converted to a conventional numbering system for ease of reference, e.g., 16, 17.8 (See generally People v. Henderson (2003) 107 Cal.App.4th 769 [capillary electrophoresis meets prong one] (Henderson).) If the DNA profile derived from the DNA analysis is a common DNA profile in the population, then a match between the crime scene DNA profile and the suspect's DNA profile has little significance; the crime scene DNA could just as well have come from someone else. But if the DNA profile is rare, the match in DNA profiles makes it Sometimes the computer will detect fluorescence even though no DNA allele is actually present. Such a reading--called an "artifact"--is recognized by the absence of true alleles at other loci. Distinguishing an artifact from a genuine allele requires repeating the electrophoresis. Sometimes, too, the computer will disregard as "stutter" alleles that in fact are present, and those alleles will not be printed on the electropherogram. 13
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more likely that the crime scene DNA came from the suspect. Thus the frequency of the DNA profile within the population is a necessary component of DNA evidence. (NRC II, pp. 31, 89, 117-119, 127.) 2. Techniques Used Here a. Extraction. The DNA on Virginia Lowery's fingernail clippings was extracted by Alan Keel, the criminalist at the San Francisco Crime Laboratory. He first swabbed all the fingernails and pooled the swabs into a single sample. The sample was then treated with chemicals designed to rupture any cells present and release the DNA into the liquid. The swab material was then separated from the liquid under high speed centrifugation, and organic solvents were added to remove all cellular matter except the DNA. Alan Keel testified that the procedures he followed were in accordance with the procedures set forth in the laboratory manual. b. Quantitation. Next, Keel determined how much DNA was present in the liquid evidence sample. c. Amplification. In June 1998, when Keel began his DNA analysis of the fingernails, the San Francisco Crime Lab had four test kits available for casework, and Keel used three of them for concurrent analyses of the DNA from the fingernails and from a bloodstain known to be from Virginia Lowery. He began with the combined DQ-Alpha and Polymarker kit and followed the procedures set out in the kit's user's guide as well as the procedures in the laboratory's manual. He also used the Green One kit, which tests for the sex gene plus four genes beyond those tested in the DQ-Alpha and Polymarker kits. d. Interpretation. Because each person has only two alleles at each locus, the presence of more than two alleles for a particular locus indicates a mixed sample. Based on the number of different alleles found at particular loci (as many as five different alleles), Keel determined that at least three persons had contributed to the DNA on the fingernails.

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Keel also concluded that there were no more than three contributors, because a fourth would have been revealed through the various loci that were tested. Keel determined that some alleles were present in the fingernail sample in far greater quantities than others. Keel derived a profile for the major contributor, and the Green One test showed that major contributor to be male. Using the profile of the male major contributor plus the profile derived from Virginia Lowery's own blood sample, Keel "subtracted" out the genotypes for Virginia Lowery and the male major contributor to arrive at the genotypes for a minor third contributor. Keel completed his DNA profile of the fingernail evidence on July 8, 1998-- before he obtained a sample of defendant's DNA. Not until September 1998 did Keel undertake a DNA analysis of defendant's oral swabs. Using the same kits he had used for the fingernails, Keel created a profile from the DQ-Alpha, the Polymarker, and the Green One tests. Keel found that the DNA profile on the oral swabs matched the DNA profile of the major male contributor to the fingernails. In February 1999 a new kit became available called the Profiler Plus, which tests for nine genetic markers. Keel first used that test on the fingernail specimen, before testing defendant's DNA. He took a portion of the original DNA extraction and amplified it for the Profiler Plus genetic markers. He followed the procedures set out in the laboratory manual. He then used capillary electrophoresis to visualize and identify the genotypes present in the fingernail sample. After deriving a DNA profile, Keel repeated the same steps using defendant's DNA sample. Again Keel found that defendant's DNA profile matched the profile of the major male contributor to the fingernails. A year later, in June 2000 Thomas Fedor, a forensic serologist at the Serological Research Institute (SERI) in Richmond, performed an independent DNA analysis. He examined the DNA extract from the fingernails, the blood sample from Virginia Lowery, and the oral swabs from defendant. He did not know the results of any previous testing, nor did he know the sources of the fingernail DNA, the blood, or the oral swab.

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Of the 400 picograms of DNA from the fingernails that Fedor received, Fedor used half for his analysis using the Profiler Plus kit. He amplified it with the chemical reagents from the Profiler Plus kit and tested a portion of the amplified DNA on the 310 Genetic Analyzer. The test results indicated a mixture of DNA contributors, with one major contributor who was male. Fedor also performed the Profiler Plus test for Virginia Lowery's blood sample and for defendant's oral swabs, creating a DNA profile for each. Fedor concluded defendant's DNA matched the DNA of the male major contributor to the fingernail sample and that Virginia Lowery's DNA matched one minor contributor to the fingernail sample. e. Statistical Analysis. The accepted method for determining the likelihood that a particular DNA profile would appear in the population is the "product rule," by which the probability factor for each identified genotype is multiplied seriatum to arrive at a cumulative probability for the entire DNA profile. (People v. Reeves (2001) 91 Cal.App.4th 14, 38-42 (Reeves); NRC II, pp. 38, 122.)9 Alan Keel, using 14 of the 18 genotypes he had tested, concluded the probability of finding the profile of the major DNA contributor was 1 in 19,000 trillion--i.e., so rare that it was unlikely more than one person could have the same profile.10 Thomas Fedor, who had used only the Profiler Plus kit to test for nine genetic markers, calculated the probability as 1 in 567 billion. Both experts used the product rule.

As the NRC II points out, the statistical significance is often misstated. The probability that is determined in DNA analysis is the probability that a derived profile will appear in the general population--i.e., the probability that the evidence DNA will match the suspect's DNA. What is not determined by the statistical analysis is the probability that the evidence DNA came from someone other than the defendant. (NRC II, pp. 31, 133, 198.) 10 Keel did not use three of the genotypes because they did not provide enough information to eliminate any potential sources. He did not use a fourth genotype cause it was potentially linked to one of the genes he was using. 16

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3. Defendant's Objections As we will discuss below, many of defendant's challenges to the DNA evidence pertain not to the correctness of the scientific procedures used but to the quality of the performance of those procedures. Such challenges do not affect the admissibility of the DNA evidence. (Venegas, supra, 18 Cal.4th at p. 81.) Insofar as defendant's arguments do pertain to the scientific correctness of the procedures used, we must give deference to the determinations of the trial court. (Id. at p. 91.) The trial court's foundational decision under prong three of the Kelly test will be overturned only for an abuse of discretion. (Id. at p. 93.) On appeal, we must accept the trial court's assessments of credibility, choices of reasonable inferences, and resolutions of conflicting substantial evidence. (Id. at p. 91.) If there is no substantial evidence to support a finding that correct procedures were followed, an abuse of discretion is shown. (Id. at p. 93.) Conversely, when substantial evidence supports the foundational finding, there is no abuse of discretion in admitting the evidence. (Henderson, supra, 107 Cal.App.4th at pp. 787-788; Reeves, supra, 91 Cal.App.4th at pp. 47, 49.) a. Pairing Alleles to Identify Major Contributor Producing a DNA profile from the fingernail sample was complicated because the DNA came from more than one person. The forensic examiners had to pair up the multiple alleles at each of the targeted loci to form a genotype. Both Keel and Fedor derived a DNA profile from the alleles that appeared in the greatest proportion, concluding that those alleles belonged to one major male contributor. The relative proportion of the alleles appearing in a sample is determined by the intensity of the visualized alleles. For the DQ-Alpha and Polymarker kits, the pairing up of alleles in a mixed sample involves comparing the intensity of the blue dots that appear on the testing strip. Dots are paired with dots of like intensity (strong with strong, weak with weak). For the Green One and Profiler Plus tests, a graphical printout (an electropherogram) is made during capillary electrophoresis showing the amount of fluorescence of the DNA fragments. The image appears as a peak above the baseline, and the peak height is used to identify the intensity or relative proportion of an allele. 17

Defendant challenges the experts' creation of a DNA profile for the major contributor to the mixed-source fingernail sample. As we have already said, defendant's challenge is limited to the Kelly prong three inquiry of whether the accepted scientific procedures were actually followed in this case. Both Keel and Fedor testified that in conducting the DNA tests they followed the procedures set out in the laboratory manual and in each kit manufacturer's user's guide. Defendant's objections to the experts' pairing of alleles to produce the DNA profile do not pertain to the testing procedures for identifying which alleles were present in the fingernail sample. Rather, defendant's arguments center on the experts' interpretation of the data derived from the PCR process. Dot Blot Intensity Defendant complains that Keel had no written guidelines or internal validation studies for measuring the intensity of the blue dots and pairing the identified alleles in the DQ-Alpha test. Indeed, Keel acknowledged that judging the intensity of the blue dots is one for the individual examiner. Peak Height Ratios The standard protocol for interpreting electropherograms calls for pairing alleles when the peak heights are balanced--i.e., within 70 to 90 percent of each other. Defendant complains that Keel and Fedor did not follow the protocol for pairing alleles on the basis of peak heights. Both Keel and Fedor paired up some alleles with peak height ratios far less than 70 percent, some as low as 58 percent. Yet, both experts explained that the standard protocol pertains to a single-source sample, not a mixedsource sample. Peak height ratios below 70 percent indicate a mixed source, and the pairing of alleles then becomes an exercise of judgment by the examiner. Subjective Judgment Defendant's main objection is that interpreting data from a mixed-source sample is a subjective process, not a scientific one. Keel testified that in sorting out the genotypes in the mixed-source fingernail sample he relied upon principles set forth in the laboratory manual, in the kit manufacturers' user's guides, and in guidelines issued by the DNA

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Advisory Board (DAB).11 The DAB guidelines recognize that the analyst must examine the number of alleles at each locus, the peak height ratios, and/or the band intensities to determine whether the DNA sample comes from more than one contributor. A distinct contrast in signal intensities among the alleles indicates the DNA sample is mixed. The contrast differences must then be evaluated "on a case-by-case context." The users' guide for the DQ-Alpha kit states that variations in the intensity of the dots indicate the sample is mixed or contaminated. Mixtures with "widely varying" dot intensities may be assessed for major and minor contributors based on relative intensities. The standard used by the FBI laboratory requires a "distinct" contrast in peak height ratios for distinguishing between a major and a minor contributor to a mixed sample. The obvious implication is that the individual examiner must make an expert assessment on the contrasts in signal intensity. Even Dr. Riley, one of defendant's expert witnesses, acknowledged that a major contributor to a mixed sample can be identified by large and consistent differences in peak heights. The NRC II advises that when analysis of the test results involves subjective judgment, safeguards are needed to prevent bias toward the suspect's DNA profile, i.e., interpreting a faint signal as an allele that matches the suspect's profile. Such safeguards include documenting potential ambiguities, explaining overrides of computer-assisted measurements, and conducting internal review. (NRC II, p. 85.) Again the obvious implication from the NRC II is that analysis of DNA testing will sometimes involve the exercise of the examiner's judgment to interpret what is visualized. Insofar as defendant attacks the reliability of PCR analysis, his argument is foreclosed. Defendant's complaints that the experts' evaluations of the test results were unreliable and unscientific raise a prong one inquiry, not a prong three issue. (See
11

Prior to 1994, the Technical Working Group on DNA Analysis Methods (TWGDAM) formulated guidelines for DNA testing. Subsequently, Congress passed legislation that created the DAB to develop standards of quality assurance for forensic labs testing DNA samples. (42 U.S.C.

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