The PEOPLE, Plaintiff and Respondent, v. Patrick Paul PRINCE, Defendant and Appellant.
On September 5, 2003, an information was filed in Kern County Superior Court, charging appellant Patrick Paul Prince with various offenses involving five victims:
• B.S., counts 1-3: residential burglary (Pen.Code, § 460, subd. (a); count 1), attempted commission of a lewd or lascivious act on a child under 14 (id., §§ 288, subd. (a), 664; count 2), and assault with a deadly weapon (id., § 245, subd. (a)(1); count 3). As to counts 1 and 2, it was further alleged that appellant personally used a knife in commission of the offenses (id., § 12022, subd. (b)(1)).
• J.G., counts 4-5: residential burglary (Pen.Code, § 460, subd. (a); count 4), and forcible penetration by a foreign object (id., § 289, subd. (a); count 5). As to count 4, it was further alleged that appellant personally used a knife in commission of the offense (id., § 12022, subd. (b)(1)). As to count 5, it was further alleged that appellant committed the offense during commission of a residential burglary (id., § 667.61, subds. (d)(4), (e)(2)), used a deadly weapon or a firearm (id., § 667.61, subd. (e)(4)), committed a specified offense against more than one victim (id., § 667.61, subd. (e)(5)), and personally used a knife in commission of the offense (id., § 12022.3, subd. (a)).
• S.C., counts 6-8: residential burglary (Pen.Code, § 460, subd. (a); count 6), assault with a deadly weapon (id., § 245, subd. (a)(1); count 7), and sexual battery (id., § 243.4, subd. (a); count 8). As to counts 6 and 8, it was further alleged that appellant personally used an ice pick in commission of the offenses (id., § 12022, subd. (b)(1)).
• K.S., counts 9-10: residential burglary (Pen.Code, § 460, subd. (a); count 9), and commission of a forcible lewd or lascivious act on a child under 14 (id., § 288, subd. (b)(1); count 10). As to count 9, it was further alleged that appellant personally used a firearm in commission of the offense (id., § 12022.5, subd. (a)). As to count 10, it was further alleged that appellant personally used a firearm during commission of a burglary (id., § 12022.53, subd. (b)), committed the offense during commission of a residential burglary (id., § 667.61, subds. (d)(4), (e)(2)), and used a deadly weapon or a firearm (id., § 667.61, subd. (e)(4)).
• E.K., counts 11-12: residential burglary (Pen.Code, § 460, subd. (a); count 11), and commission of a forcible lewd or lascivious act on a child under 14 (id., § 288, subd. (b)(1); count 12). As to count 12, it was further alleged that appellant committed the offense during commission of a residential burglary (id., § 667.61, subds. (d)(4), (e)(2)), and committed a specified offense against more than one victim (id., § 667.61, subd. (e)(5)).
Appellant pled not guilty and denied the special allegations. Following a jury trial, he was convicted as charged and all special allegations were found to be true. His motion for a new trial was denied, and he was sentenced to prison for a total unstayed term of 75 years to life plus 23 years 4 months, and ordered to pay various fines, fees, and restitution. He now appeals, raising claims of trial and sentencing error.
In the published portion of this opinion, we will clarify, and reaffirm, our opinions in People v. Pizarro (1992) 10 Cal.App.4th 57, 12 Cal.Rptr.2d 436 (Pizarro I ) and People v. Pizarro (2003) 110 Cal.App.4th 530, 3 Cal.Rptr.3d 21 (Pizarro II ). In so doing, we will reject appellant's claim of insufficient evidence. In the unpublished portion of the opinion, we will conclude that the convictions on counts 11 and 12 must be reversed and the matter remanded for further proceedings, but we will reject appellant's remaining contentions.
ISUFFICIENCY OF THE EVIDENCEA. Applicable Principles**B. The DNA Evidence With Respect to the Counts Involving B.S. and S.C.
The identity of the perpetrator was the main issue as to all counts. Appellant was linked to the crimes committed against B.S. and S.C. when DNA matching his was found on a mask that each girl identified as having been worn by her attacker. The prosecution's theory of the case was that the DNA evidence established appellant as the perpetrator of the offenses against B.S. and S.C., and the other charged offenses bore sufficient similarities to each other and to the crimes committed against B.S. and S.C., so as to establish that the same perpetrator was responsible for all of the crimes. Appellant claims that, because the People failed to support the DNA match evidence with a relevant statistical analysis, the match evidence did nothing more than establish appellant's identity as a possible perpetrator; hence, the evidence was insufficient to support the convictions.
In our view, the case thus presents this fundamental question: Is the frequency with which a genetic (DNA) profile occurs in the defendant's racial/ethnic group admissible to establish that the defendant is the perpetrator, where the evidence does not support a finding of preliminary fact that the perpetrator belongs to the same racial/ethnic group? As we will explain in detail, post, we conclude that profile frequency evidence cannot be used to prove the defendant is the perpetrator if based on the assumption that the perpetrator and the defendant belong to the same ethnic group because the defendant is part of that ethnic group. The probative value (hence, the relevancy) of a profile's frequency in an ethnic population depends on proof that the perpetrator belongs to that ethnic group. However, we also conclude that, for purposes of Evidence Code section 403, the preliminary fact determination of the perpetrator's ethnicity may be established by evidence sufficient to support the conclusion that the defendant and the perpetrator likely belong to the same ethnic group (e.g., a witness identifies the perpetrator as African-American and the defendant is African-American) or evidence sufficient to support the conclusion that the defendant likely is the perpetrator and hence the defendant's ethnic group appropriately may be utilized to determine profile probability/frequency regarding the perpetrator.13 Either course of reasoning (perpetrator identified as belonging to an ethnic group or likelihood defendant is the perpetrator) results in the utilization of an ethnic database and resultant statistical evidence that increase the reliability of the ultimate conclusion that defendant is the perpetrator.
We explain our reasoning first by revisiting our decisions in Pizarro I, supra, 10 Cal.App.4th 57, 12 Cal.Rptr.2d 436 and Pizarro II, supra, 110 Cal.App.4th 530, 3 Cal.Rptr.3d 21. In Pizarro I, DNA evidence was admitted against the defendant at trial. We reversed and remanded for a full evidentiary Kelly-Frye hearing,14 as we found that, prior to admitting DNA forensic identification, the prosecution should have been required to demonstrate, through the testimony of an impartial expert witness, that the protocols and procedures of the FBI (whose special agent performed the DNA analysis) were generally accepted as reliable within the scientific community. (Pizarro I, supra, 10 Cal.App.4th at p. 80, 12 Cal.Rptr.2d 436.) We also raised questions concerning the database used to calculate the statistical significance of the DNA match. In pertinent part, we cautioned against assuming relevancy of a particular racial or ethnic database simply because the suspect (i.e., the defendant) falls within that racial or ethnic group, as the relevance of the statistical probability depends upon the perpetrator being the same racial or ethnic background as the defendant. (Id. at p. 92, 12 Cal.Rptr.2d 436.) 15 We stated:
“The disputed fact generally is whether the suspect is also the perpetrator. Thus, the evidence is relevant if it tends to prove the suspect is the perpetrator. However, the preliminary fact upon which the relevancy of the proffered evidence depends is the racial/ethnic background of the perpetrator, not the suspect. If the only way you can conclude the perpetrator fits a racial/ethnic category is to assume the perpetrator was the same race/ethnic background as the suspect then the reasoning is circular, i.e.: proof of the racial/ethnic background of the perpetrator depends on the racial/ethnic background of the suspect from which we infer a statistical probability that the perpetrator is the suspect. Absent proof sufficient under Evidence Code section 403 to support the preliminary fact as to the racial/ethnic background of the perpetrator, we see no relevancy to a data base selected because of the racial/ethnic background of the suspect/defendant. The problems created by employing assumed relevancy of the database are insidious. A jury hears an astronomical figure that not uncommonly depends for its relevance upon the very issue that they have to decide: is the defendant the perpetrator? The same Evidence Code section 403 problem does not appear, however, if the general population data base, which has been created without regard to race or ethnic background, is utilized.” (Id. at p. 93-94, 12 Cal.Rptr.2d 436, fns. omitted.)
When the mandated Kelly-Frye hearing was held several years after our opinion was filed, new issues concerning the reliability and relevance of the DNA evidence were revealed for the first time. The trial court again ruled the evidence was admissible and reentered the judgment. The defendant again appealed, and we again reversed. (Pizarro II, supra, 110 Cal.App.4th at p. 540, 3 Cal.Rptr.3d 21).16 We summarized the case thus:
“Reduced to its simplest, this is a case of insufficient evidentiary foundation. The admission of DNA evidence to prove Pizarro's identity as the perpetrator raises foundational issues under both Kelly and the Evidence Code. Under Kelly and section 405, the analysis is one of reliability and trustworthiness. Under section 403, it is one of preliminary fact and relevance. The DNA evidence in this case is foundationally inadequate under both analyses. In addition, recurring thematically throughout the issues in this case are evidentiary violations founded on the improper assumption that defendant was in fact the perpetrator and that defendant's traits therefore could be relied upon to provide or clarify those traits of the perpetrator forming the basis of the DNA evidence.” (Id. at pp. 540-541, 3 Cal.Rptr.3d 21, fns. omitted.)
Section 400 provides in part: “ ‘[P]reliminary fact’ means a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence.” Pursuant to the pertinent portion of section 403, “(a) The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: (1) The relevance of the proffered evidence depends on the existence of the preliminary fact․” As we explained in Pizarro II,
“In Pizarro's case, some of the issues arising from the match evidence and the statistical evidence involve preliminary foundational facts upon which the relevance of the proffered evidence rested. Under section 403, subdivision (a), the proponent of such evidence has the burden of producing evidence of the preliminary fact sufficient for a trier of fact to reasonably find by a preponderance of the evidence that the fact exists. [Citations.] Unless the preliminary fact is established, the proffered evidence depending on it is neither relevant nor admissible. [Citations.]
“Here, the relevance of the DNA evidence relied upon the perpetrator's genetic profile and the perpetrator['s] population as preliminary facts.[[ 17] First, the relevance of the match evidence depended on the preliminary fact of the perpetrator's profile. The match evidence was not relevant to prove defendant's profile resembled the perpetrator's profile unless the match was based on the perpetrator's profile. More specifically, defendant's traits were not relevant to prove a match unless the perpetrator's traits were sufficiently established. In the physical profile analogy, if evidence that the defendant has black hair, blue eyes, and 5-foot 8-inch stature is offered to prove he looks like the perpetrator, then the preliminary fact that the perpetrator has black hair, blue eyes, and 5-foot 8-inch stature must be established. This simple evidentiary requirement echoes the rule of logic stating: all possible perpetrators have black hair, blue eyes, and 5-foot 8-inch stature; the defendant has black hair, blue eyes, and 5-foot 8-inch stature; therefore, the defendant is a possible perpetrator. If the foundation of the perpetrator's profile is not laid, there is an insufficient basis to conclude the defendant possesses the same profile as the perpetrator.
“Second, the relevance of the statistical evidence (the profile frequency) depended on the preliminary facts of the perpetrator's profile and the perpetrator['s] population. The profile frequency was not relevant to prove the rarity of the perpetrator's profile in the perpetrator['s] population unless the frequency was based on the perpetrator's profile and the perpetrator['s] population. In the physical profile analogy, if evidence of the number of people in the Hispanic population who have black hair, blue eyes, and 5-foot 8-inch stature is offered to prove the rarity of the perpetrator's profile in the perpetrator['s] population, then the preliminary facts that the perpetrator has black hair, blue eyes, and 5-foot 8-inch stature and that the perpetrator is Hispanic must be established. Logically, this evidentiary requirement is stated as follows: all possible perpetrators have black hair, blue eyes, and 5-foot 8-inch stature and are Hispanic; a certain (small) number of people in the Hispanic population have black hair, blue eyes, and 5-foot 8-inch stature; therefore, this profile is rare in the Hispanic population. If the foundation of the perpetrator's profile and the perpetrator ['s] population is not laid, there is an insufficient basis to conclude the perpetrator's profile is rare in the perpetrator['s] population.
“These foundational preliminary facts regarding the perpetrator's traits must be established by independent proof. In other words, the description of the perpetrator-whether genetic or physical-must be based on evidence of the perpetrator's traits. A sketch artist creates an artistic representation of the perpetrator from an eyewitness's description of the perpetrator's physical features. Then the defendant is held up to that sketch to determine whether he possesses the perpetrator's traits. If the defendant happens to match the sketch of the perpetrator, the match provides evidence against him.
“If the description of the perpetrator is instead based on evidence of the defendant's traits-which are simply assumed to be the same as the perpetrator's-the defendant no longer enjoys the presumption of innocence. It is as though the sketch artist sits with the defendant, sketches him as the perpetrator, and the prosecution introduces the sketch at trial as evidence that the defendant looks exactly like the perpetrator. The defendant's traits fill out the perpetrator's description with facts that are not in evidence, and the perpetrator's traits are ‘proved’ by what is in effect a presumption that because the defendant possesses certain traits, the perpetrator also possesses those traits. Such a presumption operates as a substitute for proper evidence of the perpetrator's traits, thereby lightening the prosecution's burden of affirmatively proving the defendant's identity as the perpetrator and undermining the defendant's presumption of innocence. The logic is this: the defendant is the perpetrator; the defendant possesses certain traits; therefore, the perpetrator also possesses those traits. The defendant's guilt is the premise rather than the ultimate conclusion sought by the prosecution.
“The prosecution's use of such an implicit presumption establishes for the jury, without presentation of any evidence on the topic, that the perpetrator possesses certain traits. The jurors may be either unwitting recipients or active participants in the implementation of the presumption. If the jury is unaware of the presumption (i.e., if the jury is simply informed that the perpetrator possesses certain traits), then the prosecution both creates the presumption and implements it for the jury. If, instead, the jury is informed of the presumption (i.e., if the jury is informed that the perpetrator possesses certain traits because the defendant possesses those traits), the presumption functions as a silent instruction to the jury: ‘If you find that the defendant possesses certain traits, you must also find that the perpetrator possesses those traits.’ Implicit is the subtle message that the defendant is the perpetrator. This message to the jury even further lightens the prosecution's burden of proving the required facts.
“The effect of these evidentiary infractions is severe. For example, since it is presumed that the perpetrator has black hair, blue eyes, and 5-foot 8-inch stature, the jurors willingly infer that because the defendant also possesses those traits, the defendant resembles the perpetrator and probably is the perpetrator. This ostensibly logical but entirely circular inference allows the defendant's traits to be used as incriminating evidence without any basis in proof whatsoever. The defendant necessarily possesses those traits-to his prejudice-because it is his traits that have been added to the perpetrator's description. The jury's conclusion that the defendant resembles the perpetrator is based only on the fact that the defendant possesses his own traits. Ironically, the defendant becomes the link between the perpetrator and the defendant-the defendant's own traits establish the perpetrator's traits, and the defendant's inescapable possession of those traits incriminates him.” (Pizarro II, supra, 110 Cal.App.4th at pp. 542-546, 3 Cal.Rptr.3d 21, fns. omitted.)
Two issues were before us in Pizarro II. The first concerned the reliability and, hence, the admissibility, under Kelly and section 405, of the FBI's method of determining whether there was a “match” between the genetic (DNA) profiles of Pizarro and the perpetrator. (Pizarro II, supra, 110 Cal.App.4th at p. 547, 3 Cal.Rptr.3d 21.) Although DNA testing in Pizarro was accomplished by means of restriction fragment-length polymorphism (RFLP) analysis (Pizarro I, supra, 10 Cal.App.4th at p. 68, 12 Cal.Rptr.2d 436), whereas the short tandem repeat (STR) typing method was used in appellant's case, we are not concerned with this issue: appellant has not challenged the evidence, including the expert's opinion, that his DNA matched that obtained from the mask found on the Biagi-Gilchrist property and identified by B.S. and S.C. as having been worn by their attacker.
The second issue in Pizarro II involved the statistical evidence. There, the jury was told the frequency of the genetic profile in the Hispanic population. We explained that this Hispanic profile frequency was not relevant to prove the perpetrator's profile in the perpetrator's population unless there was sufficient evidence to establish the preliminary fact that the perpetrator was Hispanic. (Pizarro II, supra, 110 Cal.App.4th at p. 547, 3 Cal.Rptr.3d 21.) Although we did not decide whether there was in fact sufficient evidence to establish, under section 403, subdivision (a), that the perpetrator was Hispanic, we found the record to clearly demonstrate that the prosecution relied on Pizarro's ethnicity, and not on that of the perpetrator, to establish this preliminary fact. In reality, the perpetrator's ethnicity should have been established independently; reference to the defendant's ethnicity was not permissible for this purpose. (Id. at pp. 547-548, 3 Cal.Rptr.3d 21.)
It is this relevancy issue which is before us in the present case.18 B.S. and S.C. sufficiently identified the mask found on the Biagi-Gilchrist property so as to permit the conclusion it was worn by their attacker. A bandanna was found in the same area. Brenda Smith, supervising criminalist for the Kern County Regional Crime Laboratory, extracted DNA from the red cloth that was taped over the mouth hole of the mask, and from fuzz she scraped from the bandanna. She obtained DNA profiles from these items, which she then compared with known reference samples from appellant and others. Although she was able to eliminate the others as possible contributors of the DNA on both items, she could not eliminate appellant. This meant that appellant's DNA profile matched that of the evidence DNA at the nine locations for which Smith tested.19
Smith's next step was to perform the statistical calculations by which she determined the rarity of appellant's DNA profile. She testified: “What I need to do is determine how common is this profile in the population, and the way I do that is have a reference population or a sample population. There are a lot of different published population databases that are used in the forensic community. And basically I'll use one of those-well, we use one in particular, one that was developed by the FBI, a published database that was developed by them. [¶] There's-generally we look at different ethnicities because sometimes there's differences in the different ethnicities, so the three populations that I generally look at are Caucasian, Hispanic, African-American. And I have some statistic software to help out with the calculation part. I enter the data in and the statistics [sic ] will do the calculations for me and determine just how common the profile is, you know, in this reference population, which extrapolates to the population at large.” 20 When asked by the prosecutor why, if the evidence DNA profile matched a known sample DNA profile, Smith could not simply say the evidence contained the DNA of the person who contributed the known sample, Smith replied, “Well, we can't say for certain it's that person's DNA because there is, you know, that possibility that it, you know, by chance it's somebody else's DNA that just happens to have the same profile. So it's really important to determine how common or how rare that profile is. If, you know, you've got this profile, but one out of every ten people have that profile, then that's not really all that great maybe.”
Smith explained that the statistical interpretation took the form of a likelihood ratio that compared two different alternative possibilities, i.e., either the individual contributing the known reference sample contributed the evidence DNA and that is why the profiles matched; or the evidence DNA was contributed by some unknown, unrelated individual who happened to have the same DNA profile. In this case, then, either appellant was a source of the DNA recovered from the mask and the bandanna fuzz; or the source of that DNA was some unknown, unrelated male who had the same DNA profile as appellant. Using the three databases, she calculated that, for the Caucasian population, the evidence DNA profile was approximately 1.9 trillion times more likely to match appellant's DNA profile if he was the contributor of that DNA rather than some unknown, unrelated individual; for the Hispanic population, it was 2.6 trillion times more likely; and for the African-American population; it was about 9.1 trillion times more likely.
Relying on Pizarro II, appellant now contends this statistical evidence was irrelevant because the prosecution failed to present substantial evidence to prove that the perpetrator was Caucasian, Hispanic, or African-American. Because the match evidence does not establish identity without a relevant statistical analysis, the argument runs, and because the People's case relied almost exclusively on DNA evidence for all counts, the convictions on all counts fail for lack of substantial evidence. Respondent, on the other hand, acknowledges that appellant's claim is “bolstered” by Pizarro II, but asks us to reexamine that opinion. Respondent says the premise that an ethnic database can be used only if it matches the perpetrator's identified ethnicity is flawed because (1) it overlooks sections 801 and 802, which permit an expert to testify about the factual bases for his or her opinions (in this case, scientifically-accepted and routinely-used databases sorted by race and ethnicity); (2) DNA profile frequency estimates which are reported over a range of generally representative ethnic databases are relevant because the estimates produce some evidence of a DNA profile's rarity in the population as a whole and so assist the trier of fact in assessing the significance of a DNA profile match; and (3) unlike the situation that existed in Pizarro, in the present case neither the prosecutor nor the expert witness referred to appellant's genotype or ethnicity to prove the perpetrator's genotype or ethnicity, and so appellant's traits or race were not relied upon to establish the preliminary fact needed to render the DNA evidence relevant.
For reasons we will explain, we are not persuaded by respondent's contentions, and we decline to reassess our reasoning in Pizarro II. On the other hand, we also reject appellant's claim that the statistical evidence was irrelevant. However fortuitously it may have occurred, jurors properly were allowed to consider that evidence.21
The rules of admissibility with respect to relevant evidence do not change simply because DNA evidence is involved. “ ‘Relevant evidence’ means evidence ․ having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (§ 210.) Thus, evidence is relevant if it “tends ‘logically, naturally, and by reasonable inference’ to establish material facts such as identity, intent, or motive. [Citations.]” (People v. Garceau (1993) 6 Cal.4th 140, 177, 24 Cal.Rptr.2d 664, 862 P.2d 664, disapproved on other grounds in People v. Yeoman (2003) 31 Cal.4th 93, 117-118, 2 Cal.Rptr.3d 186, 72 P.3d 1166.) When evidence leads only to speculative inferences, however, it is irrelevant. (People v. Kraft (2000) 23 Cal.4th 978, 1035, 99 Cal.Rptr.2d 1, 5 P.3d 68.)
Evidence is either relevant or it is irrelevant. If it is relevant, it is presumptively admissible (§ 351); if it is irrelevant, it is inadmissible (§ 350; People v. Babbitt (1988) 45 Cal.3d 660, 681, 248 Cal.Rptr. 69, 755 P.2d 253).22
To say that relevance is an all-or-nothing proposition can be misleading, however, because whether a particular item of evidence is relevant depends upon what that evidence is offered to prove. Thus, evidence may be relevant for one purpose, but irrelevant for another. For example, if it is offered to prove the ultimate fact, it must be probative of that fact in order to be relevant. If it is not probative of the ultimate fact, it still may be probative of some intermediate fact and so be relevant if it is offered to prove that fact, and yet be irrelevant if it is offered only to prove the ultimate fact. Similarly, “[s]ometimes the relevance of evidence depends on the existence of a preliminary fact. [Citations.]” (People v. Lucas (1995) 12 Cal.4th 415, 466, 48 Cal.Rptr.2d 525, 907 P.2d 373.) In other words, evidence may be irrelevant to prove a particular fact if certain preliminary facts are not established. Section 403 recognizes this. The admission of DNA “match” or profile evidence, as well as the admission of statistical probability or frequency calculations, present both of these facets of relevance.
To be probative of a defendant's identity as the perpetrator, the DNA evidence, including the statistical calculations, must demonstrate the rarity of the perpetrator's genetic profile in the perpetrator's population (i.e., the population of possible perpetrators), and that the defendant's genetic profile matches that of the perpetrator. Standing alone, a match between a defendant's DNA profile and that of the evidence (perpetrator's) DNA is relevant because it has some tendency in reason to prove identity: the defendant cannot be excluded as the person who contributed the evidence DNA; hence, he (or she) could be the perpetrator.23 It appears settled, however, that profile frequencies vary among racial/ethnic groups, and that experts consider this variance to be statistically significant. Because of this, evidence of the perpetrator's ethnicity is critical to the analysis. Without evidence establishing the rarity of the profile in the perpetrator's population, evidence of a match does not tend to prove anything more than that the defendant could be the perpetrator: it does not establish a sufficient likelihood that the defendant is the perpetrator, so that jurors properly may conclude the defendant's identity has been established by the DNA match alone. The fact that the matched genetic profile is rare in some ethnic population(s) cannot exclude an unknown member of another ethnic group as being an equally (or significantly) likely contributor of the evidence DNA. The matched profile must be rare in the perpetrator's population, and the perpetrator's population cannot be presumed from the defendant's ethnicity. The mere fact the defendant is Hispanic, for example, does not establish that the perpetrator is Hispanic. To make such an assumption uses the traits of the individual on trial to establish who committed the crime, instead of using the traits of the individual who committed the crime to establish who should be on trial and convicted. Such use of the evidence is improper. (Pizarro II, supra, 110 Cal.App.4th at pp. 544-546, 3 Cal.Rptr.3d 21.)
As a result, where the perpetrator's ethnicity is unknown, it is not enough merely to establish that the matched genetic profile is rare in the defendant's population, i.e., the population that corresponds to his ethnicity. Instead, there must be evidence that the profile is rare in the perpetrator's population, i.e., the population that corresponds to the perpetrator's ethnicity. In short, the preliminary fact of the perpetrator's ethnicity must be established before the frequency evidence may be deemed to be relevant if ethnicity is the basis of the probability analysis.
As a practical matter, this evidence of rarity in the perpetrator's population depends for its relevancy on proof that the defendant's ethnicity is the same as that of the perpetrator. For instance, suppose jurors are told that the profile frequency is one in one billion in the Hispanic population. If the defendant is Hispanic and the perpetrator is Hispanic, jurors now have a basis upon which they can determine the likelihood that the defendant, and not someone else, contributed the evidence DNA and is, therefore, the perpetrator. If the perpetrator's ethnicity is unknown, however, frequency statistics for the Hispanic population permit jurors to assess the likelihood the defendant is the perpetrator only if, fortuitously, the perpetrator is also Hispanic-a conclusion that cannot be drawn from the evidence. Jurors may speculate that the perpetrator is Hispanic because the defendant is Hispanic, but the defendant's ethnicity, standing alone, does not provide a scintilla of proof of the perpetrator's ethnicity. In our hypothetical, the defendant may be Hispanic, but the perpetrator could actually be Asian. Without more information on the subject (likely in the form of expert testimony), lay jurors simply are not equipped to determine whether, because a profile is extremely rare with respect to one ethnic group, it is also extremely rare with respect to another specific ethnic group or with respect to all ethnic groups, i.e., the general population. (See People v. Barney (1992) 8 Cal.App.4th 798, 817-818, 10 Cal.Rptr.2d 731 [discussing why Kelly requirement of general scientific acceptance applies to statistical calculation step of DNA analysis].) Because of this, in our example, the frequency statistics for the Hispanic population do not tell jurors anything about probability if the perpetrator belongs to some other ethnic group. They are, therefore, irrelevant on the question of the defendant's identity as the perpetrator: they have no tendency in reason to prove or disprove the fact for which they are offered, i.e., that it is so unlikely the defendant and another individual have the same DNA profile as the evidence DNA, that the defendant must be the perpetrator.
Thus, only if the perpetrator's ethnicity is sufficiently established does evidence of a profile's frequency in that ethnic population become relevant to prove the rarity of the perpetrator's profile. The relevance of the frequency evidence depends upon the preliminary fact of the perpetrator's ethnicity. Because of the way the evidence is presented, however, use of the defendant's ethnic population without reference to that of the perpetrator, as occurred in Pizarro, ineluctably points the finger at the defendant, even though it does not truly prove anything. On the other hand, it presents jurors with a very subtle, but very insidious, form of racial profiling: the assumption that the perpetrator and the defendant are the same race and, therefore, that the defendant is the perpetrator.24
The use of three ethnic databases, as occurred in the present case, is not as unmistakably prejudicial, as the link to the defendant is less direct and there is a greater chance that, by luck, the perpetrator's ethnic group has been included. Where the perpetrator's ethnicity is unknown, however, neither the expert witness(es) nor the jurors have any way of knowing whether the profile frequency statistics in fact include the perpetrator's population, or whether, once again, the relevance of that evidence depends upon the unsupported assumption that the perpetrator and the defendant are the same race. The calculation of frequency probabilities using three ethnic databases, without more, thus does not cure the core problem or render the resulting statistics relevant to prove the fact for which they are offered-again, that the rarity of the profile in the perpetrator's population renders the likelihood someone other than the defendant contributed the evidence DNA so small that the defendant must be the perpetrator. In order to identify the defendant as the perpetrator, it is not enough to show that his genetic profile matches that of the evidence DNA, or that the matched profile is rare in his ethnic group. Instead, it must be shown to be rare in the perpetrator's population, and that the defendant is a member of that population. Absent additional information, jurors cannot extrapolate the requisite rarity from only three of the possible racial populations.
The rarity of the matched profile does not derive from any individual ethnic database or databases, because any that do not represent the perpetrator's racial group are irrelevant, of themselves, to establish that the defendant is likely the perpetrator. By contrast, the perpetrator necessarily must come from the general population. Thus, in our view, when the perpetrator's ethnicity is unknown, the most appropriate solutions would appear to be (1) to present the one most conservative frequency, without mention of ethnicity, or (2) assuming this method is scientifically valid and results in a frequency that is considered conservative, to present a single frequency calculation based on a general, nonethnic population database. (Pizarro II, supra, 110 Cal.App.4th at p. 633, fn. 85, 3 Cal.Rptr.3d 21.) When frequency calculations that do not reference ethnicity are employed, the profile frequency evidence no longer tells jurors that if the defendant and the perpetrator share ethnicity, the likelihood the defendant is the perpetrator is some number. Instead, the evidence tells jurors that regardless of the perpetrator's ethnicity, the likelihood the defendant is the perpetrator is some number. Jurors then have to decide whether, in their minds, the genetic profile is sufficiently rare so as to be persuasive as to identification of the defendant as the perpetrator. The selection of three individual ethnic databases, even assuming they represent the three largest population groups, is insufficient for this purpose because they have no value independent of the ethnicity of the perpetrator. All such evidence tells the jury is that the DNA profile is statistically rare in those population groups. It neither excludes nor includes the perpetrator as a member of any of those groups, nor does it specifically identify the defendant as being in the same population group as the perpetrator.
As previously noted, to be probative of a defendant's identity as the perpetrator, the evidence must show both the rarity of the perpetrator's profile (or traits) in the population of possible perpetrators, and that the defendant shares that profile (or traits). We will attempt to illustrate our reasoning using the .22 magnum cylinder found in the pickup truck parked on appellant's property.25 Evidence that appellant possessed a .22 magnum cylinder is relevant because it has some tendency in reason to show that he is among the individuals who could have been the perpetrator of the attack on K.S., in which a .22-caliber magnum firearm was used. In a similar vein, appellant's genetic match to the evidence DNA is relevant because it has some tendency in reason to show that he is among the individuals who could have worn the mask which B.S. and S.C. identified as having been used by the perpetrator.
Suppose there is one firearms manufacturer, A, in California that makes guns in which .22 magnum cylinders can be used. Further suppose A only makes one such gun out of every billion weapons it produces, and that appellant owns and uses one of those guns. This evidence is relevant to show that if the perpetrator's gun (the gun used in the attack) was made by A, then the probability is such that it would be unreasonable to conclude anyone other than appellant used it. Now, suppose that, in addition to A, there are two other manufacturers of such firearms, B and C, in California. A makes one such gun out of every billion weapons it produces, B makes one such gun out of every five billion weapons it produces, and C makes one such gun out of every ten billion weapons it produces. This evidence is probative of the rarity of a perpetrator with this kind of gun in the population of possible perpetrators if the weapon used was made by A, B, or C. To identify appellant as the perpetrator, however, the evidence must also show that appellant's gun was made by the same manufacturer as the perpetrator's gun.
The problem is that the evidence does not establish that the weapon used in the attack was made by A, B, or C. Thus, because we do not know how many such guns are manufactured and sold by other companies, the evidence is insufficient to establish the rarity of a perpetrator with this kind of gun in the population of possible perpetrators, because there is no way of knowing how many other people have such a gun. For all the evidence shows, there could be 15 firearms manufacturers in Nevada who make millions of such guns each year; thus, in stark contrast to the impression given by the statistics presented, in reality one person in every five might own such a gun.
Because the rarity of a perpetrator with this kind of gun in the population of possible perpetrators is not established, evidence that appellant's gun “matches” that of the perpetrator with respect to the “trait” of kind-.22 magnum-is not probative on the ultimate question of appellant's identity as the perpetrator. Instead, there must also be a match between guns with respect to the “trait” of manufacturer. Even if one in every five people own a .22 magnum firearm, if A only makes one such gun out of every billion weapons it produces, and if the perpetrator's gun and appellant's gun are both made by A, then the evidence is probative of appellant's identity as the perpetrator. No longer is appellant merely a possible perpetrator; now, it can be determined that he is almost certainly the perpetrator.
In the context of DNA evidence, showing that a profile is rare among, for example, Caucasian, Hispanic, and African-American populations is probative of identity if the perpetrator belongs to one of those populations and if the defendant shares the trait of membership in that population. If the evidence shows the defendant is a member of one of those populations but establishes nothing about the perpetrator, the profile frequency evidence is not probative of the defendant's identity as the perpetrator: it neither establishes the rarity of the perpetrator's profile in the population of possible perpetrators (since, for example, the perpetrator could belong to a population in which the profile appears in one in every five people) nor that the defendant matches the perpetrator's trait. The rarity of the defendant's profile in those populations, without more, establishes nothing with respect to his identity as the perpetrator: the defendant's profile and ethnicity cannot be used to establish those of the perpetrator.
Turning back to our gun example, if, on the other hand, statistics are presented to show that, in all the guns manufactured in this country, only one in one million is the kind used by the perpetrator, and appellant's gun is the same kind, then the frequency evidence is relevant with respect to identification of appellant as the perpetrator. The question then becomes one of sufficiency of the evidence, i.e., whether a frequency of one in one million is sufficiently rare, and thus the likelihood that someone other than appellant used the gun so small, that it can be said appellant is the perpetrator. The existence of other evidence has an effect on this final question, since the stronger the other evidence, the less critical to the ultimate question the frequency of the match (i.e., the probability) becomes.
Nothing we say here or in either Pizarro opinion means that, where the perpetrator's ethnicity is unknown, profile frequency evidence can never be relevant. We emphasize again that, as is true with respect to any evidence, relevance depends upon the purpose for which the evidence is offered.
Respondent says sections 801 and 802 permit an expert witness to refer to racial and ethnic databases which are reasonably relied upon by experts in establishing a range of random match probability estimates for DNA evidence profiles.26 We have no quarrel with the principles that apply to expert testimony in general: “Expert testimony may ․ be premised on material that is not admitted into evidence so long as it is material of a type that is reasonably relied upon by experts in the particular field in forming their opinions. [Citations.] Of course, any material that forms the basis of an expert's opinion testimony must be reliable. [Citation.] For ‘the law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert's opinion is no better than the facts on which it is based.’ [Citation.] [¶] So long as this threshold requirement of reliability is satisfied, even matter that is ordinarily inadmissible can form the proper basis for an expert's opinion testimony. [Citations.] And because Evidence Code section 802 allows an expert witness to ‘state on direct examination the reasons for his opinion and the matter ․ upon which it is based,’ an expert witness whose opinion is based on such inadmissible matter can, when testifying, describe the material that forms the basis of the opinion. [Citations.]” (People v. Gardeley (1996) 14 Cal.4th 605, 618-619, 59 Cal.Rptr.2d 356, 927 P.2d 713.) We further take no issue with the notion that the ethnic databases used here are the type of matter that reasonably may be relied upon by an expert in forming an opinion. (See People v. Bui (2001) 86 Cal.App.4th 1187, 1196, 103 Cal.Rptr.2d 908 [expert properly relied on scientific literature, statistical data, and epidemiological study].)
With respect to the present case, respondent says, “Smith's expert opinion was that there is a range of applicable profile frequency estimates (in the trillions) ․ and that these estimates permit her conclusion that the case evidence DNA profiles are extremely rare in three major United States populations. As support for her opinion regarding random match probability, Smith permissibly used and referenced the FBI's databases, all sorted by race, according to accepted practice. [Citations.] Under the Evidence Code's generous provision for expert witness testimony, Smith was able to describe that material to the jury.” Respondent ignores the fact that, if the perpetrator is not a member of one of those “three major United States populations,” Smith's conclusion that the evidence DNA profile is extremely rare in those populations does not, without more, tend to establish appellant's identity as the perpetrator. “[A]n expert's opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based. [Citations.]” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510, 11 Cal.Rptr.3d 653; see Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651, 51 Cal.Rptr.2d 907 [opinion testimony which is conjectural or speculative does not constitute substantial evidence].)
Respondent argues that the DNA profile frequency estimates to which Smith testified, were reported over a range of generally representative ethnic databases and were therefore relevant because such estimates provided some evidence of the DNA profile's rarity in the population as a whole. We do not know whether Caucasian, Hispanic, and African-American databases are “generally representative” of the population as a whole. For such evidence to be admissible, as an initial matter an expert witness would have to be able to testify that extrapolation from specific ethnic populations to the population as a whole is scientifically appropriate and that, for example, a DNA profile which is shown to be rare in three major ethnic populations will be equally (or comparatively) rare in the general population. It is conceivable that, depending on the circumstances, such evidence could be relevant for some purpose. This is not, however, the evidence that was presented in the case before us. Smith testified that there are many different published population databases that are used in the forensic community, and that she used the ones developed by the FBI. She acknowledged the need to look at different ethnicities because there can be differences among them, then stated that she generally looked at Caucasian, Hispanic, and African-American populations. She did not explain why she chose those three beyond them being the databases published by the FBI. She did state that her statistical software would calculate the rarity of the profile in the reference population, which would extrapolate to the population at large; however, taken in context and in light of her subsequent reference to “the different populations” (italics added), we read this as meaning that the frequency calculated based upon the sample (reference) Caucasian population extrapolates to the Caucasian population at large, the frequency calculated based upon the sample Hispanic population extrapolates to the Hispanic population at large, and the frequency calculated based upon the sample African-American population extrapolates to the African-American population at large. We find nothing in Smith's testimony upon which to base a conclusion that the frequencies calculated from the three sample populations extrapolate to the general population-i.e., the population as a whole-without reference to a particular ethnic group. Nor do we find anything beyond conjecture from which a jury could conclude that, because a DNA profile is rare in these three ethnic populations, it necessarily is rare in other ethnic populations or, because these are three large population subgroups, in the general population.
Calculation of the probability of a random match in a population depends in part upon the assumption that the correct population has been identified. (People v. Axell (1991) 235 Cal.App.3d 836, 865, 1 Cal.Rptr.2d 411.) Smith's testimony does not support such an assumption in this case.
Respondent contends that “generally representative ethnic database estimates are indeed relevant where they provide evidence of a DNA profile's rarity in the population as a whole.” Whatever the validity of this statement, as presented at appellant's trial (and that of Pizarro), the statistical calculations did not provide such evidence, nor were they proffered for that purpose.
In making the foregoing claim of relevance, respondent takes issue with our reiteration, in Pizarro II, that “an ethnic profile frequency relies for its relevance on the foundational showing that the perpetrator is a member of the particular ethnicity.” (Pizarro II, supra, 110 Cal.App.4th at p. 623, 3 Cal.Rptr.3d 21.) As we have pointed out, however, the ethnic frequency presented at Pizarro's trial was based on Pizarro's ethnicity, not on that of the perpetrator. In Pizarro I, we explained that the problem before us arose because “[t]he selected racial or ethnic data base is predicated upon the suspect's [defendant's] racial or ethnic background. However, the relevancy of the statistical probability depends on the perpetrator being the same racial or ethnic background as the suspect [defendant].” (Pizarro I, supra, 10 Cal.App.4th at p. 92, 12 Cal.Rptr.2d 436.)
In Pizarro II, we noted that “[t]he profile frequency estimates how many people in the relevant population match the perpetrator's profile. The relevant population ․ is the perpetrator's population-the population to which possible perpetrators belong. [Citations.]” (Pizarro II, supra, 110 Cal.App.4th at p. 627, fn. 76, 3 Cal.Rptr.3d 21.) We made clear that the relevant population cannot properly be determined simply by reference to the defendant's ethnicity. (Id. at p. 628, 3 Cal.Rptr.3d 21.) In part, we stated:
“On rehearing, the People ․ assert[ ] that an ethnic frequency based on the defendant's ethnicity is relevant for two reasons. First, they contend it is relevant because it assists the jury in assessing the rarity of the profile. We disagree. Such a frequency only tells the jury the rarity of the perpetrator's profile in the defendant's population-a population to which the perpetrator has not been shown to belong. The calculation assumes the perpetrator, like the defendant, is Hispanic; but if the perpetrator is not, the frequency is irrelevant and does not assist the jury in any way. For example, the jury is not assisted by knowing how many Hispanics possess the perpetrator's traits if the perpetrator is actually Asian.
“Second, the People claim a frequency based on the defendant's ethnicity is relevant because it simply includes the defendant within the class of possible perpetrators, in the same way a finding that the defendant matches the perpetrator's blood type includes the defendant in the class of possible perpetrators. Again, we disagree. The procedural step that simply includes defendant within the class of possible perpetrators is the determination that the defendant's profile matches the perpetrator's profile, like the determination that the defendant's blood type matches the perpetrator's blood type. These are the findings that render the defendant a possible perpetrator and include him in that class. [Citation.]
“By comparison, the procedure we address here is the subsequent determination of the frequency or rarity of the perpetrator's profile or blood type in the relevant population-to provide meaning to the match. The match includes the defendant in the class; the frequency calculation estimates the size of that class so that membership in it has meaning. The fewer the members, the more incriminating the membership.
“The appropriation of the defendant's trait into the perpetrator's profile changes the description of the possible perpetrators, who are now described according to the defendant rather than the perpetrator. This spuriously redefined class is no longer the perpetrator['s] population, but the defendant's, and inclusion of the defendant in this class simply includes him in his own class. Thus, defendant's own Hispanic ethnicity could not properly include him in the class of possible perpetrators unless all possible perpetrators were Hispanic, a determination which relied on proof that the actual perpetrator was Hispanic.
“In sum, we do not take issue with procedural steps that simply include the defendant in the class of possible perpetrators, if that is indeed what they do. Our concern is with procedural steps that add to the perpetrator's profile a trait (here, defendant's ethnicity ․) that the perpetrator has not been shown to possess, and then judge the rarity of possible perpetrators according to that unjustifiable, irrelevant trait.” (Pizarro II, supra, at pp. 628-629, 3 Cal.Rptr.3d 21, fn. omitted.)
We then turned to an argument which is similar, in many respects, to the one respondent makes in the current case. Noting that only two ethnic frequencies (Hispanic and Caucasian) were mentioned at Pizarro's trial (expressly because Pizarro was half Hispanic and half Caucasian), and that the Caucasian frequency was not presented as part of a range of ethnic frequencies (Pizarro II, supra, 110 Cal.App.4th at p. 631, fn. 81, 3 Cal.Rptr.3d 21), we stated:
“The People argue ․ that the calculation and presentation of several frequencies derived from various ethnic databases is a satisfactory and commonly used alternative. For example, the jury might be told the perpetrator's genetic profile is found in 1 in 1 million Caucasians, 1 in 2.5 million Blacks, 1 in 10 million Hispanics, and 1 in 5 million Asians. The People assert that this practice provides the jury with an accurate range of frequencies over a continuum of ethnic populations, and that all ethnic frequencies are relevant because they tend to prove the significance of the match.
“Although presentation of a range of ethnic frequencies may in fact accurately provide the range of all possible frequencies, we see three problems with this practice. First, in the absence of sufficient evidence of the perpetrator's ethnicity, any particular ethnic frequency is irrelevant. The problem is again one of preliminary fact-now occurring multiply and simultaneously. It does not matter how many Hispanics, Caucasians, Blacks, or Native Americans resemble the perpetrator if the perpetrator is actually Asian. If various ethnic frequencies are presented to the jury, each will have been admitted without adequate foundation. [¶] ․ [¶]
“Second, the improper mention of ethnicity unfairly and unjustifiably encourages the jurors to focus on ethnicity and race-specifically the ethnicity and race of the defendant, the only suspect before them.
“Third, the jury hears unjustifiably damaging evidence because the various ethnic frequencies create a range extending from the most conservative and beneficial to the defendant to the most rare and damning to the defendant. In our example, the evidence against the defendant includes not only the most favorable 1-in-1-million (Caucasian) frequency, but also the most damaging 1-in-10-million (Hispanic) frequency. If the perpetrator is actually Caucasian, only the most favorable 1-in-1-million (Caucasian) frequency is relevant, but the jury nevertheless will hear-and likely focus on-the more damaging 1-in-10-million figure. If the perpetrator is actually Black, only the 1-in-2.5-million (Black) frequency is relevant, but the jury will hear-and likely focus on-the more damaging 1-in-10-million figure. The greater the disparity between the perpetrator's true frequency and the range's most damaging extreme, the greater the prejudice the defendant will suffer from mention of that extreme. Without adequate evidence of the perpetrator's ethnicity, there is no justification for presenting the most damaging frequency.” (Pizarro II, supra, 110 Cal.App.4th at pp. 631-633, 3 Cal.Rptr.3d 21, fns. omitted.)
Respondent seeks to take frequency calculations derived from disparate individual ethnic databases and say that, because more than one ethnic database is used and the profile frequency is rare in each, the evidence from the ethnic databases is relevant because it tends to prove the profile's rarity in the population as a whole. We emphasize again that the evidence simply was not proffered for this purpose in the present case. Moreover, respondent's argument begs the question: If this is so, why would the prosecution not simply present frequency calculations derived from a general population database, without regard to ethnicity? And are we really to believe that, if the defendant is, for example, Asian, a prosecutor is likely to present statistics calculated only from Caucasian, Hispanic, and African-American population databases, on the theory that such evidence demonstrates the profile's rarity in the population as a whole?
If an expert could testify, for example, that in terms of profile frequency, the Caucasian database is representative of the population as a whole without regard to ethnicity, then calculations derived from that database would be probative no matter what the ethnicity of the perpetrator: the perpetrator necessarily would be a member of the group of people represented by the database, i.e., the entire population. The database estimate would then be relevant because it would provide evidence of a DNA profile's rarity in the population as a whole. No longer would the relevance of any particular ethnic frequency depend upon evidence of the perpetrator's ethnicity; instead, relevance would exist regardless of the perpetrator's particular ethnicity (and even if the absence of any evidence thereof) since the profile frequency presented would be, in essence, that of the general population. The evidence would now have an adequate foundation because it would permit jurors to assess the likelihood of a random match of the defendant's genetic profile in the general population, regardless of the perpetrator's ethnicity and, more importantly, without reference to that of the defendant. This is not the same, however, as presenting jurors with evidence concerning the rarity of a DNA profile in three major population groups, then asking them to infer that this profile must be similarly rare even if the perpetrator does not fall into one of those groups. The frequency evidence, as presented in this latter way, is irrelevant because it lacks the necessary foundation of the perpetrator's ethnicity.
Respondent cites People v. Wilson (2004) formerly 124 Cal.App.4th 38, 21 Cal.Rptr.3d 102, as support for the proposition that this court erred in the Pizarro cases by requiring that the database used to calculate profile frequency be drawn from the perpetrator's racial group. On February 16, 2005, shortly before respondent's brief was filed in the present matter, the California Supreme Court rendered the case noncitable as authority (Cal. Rules of Court, rules 976, 977) by granting review (S130157) on the following issue: “May a DNA expert testify to a match between the perpetrator's and defendant's genetic profiles based on different racial databases if the prosecution has not first provided independent evidence of the perpetrator's race?”
For purposes of the case before us, we would reframe the question in the following manner: If a DNA expert's testimony is offered to prove the probability of a match between the perpetrator's and defendant's genetic profiles based on different racial databases, is such evidence probative of guilt if other evidence is not sufficient to support the preliminary fact that the perpetrator is of the same racial/ethnic group as the defendant? Put in practical terms, if there is an objection to the DNA expert's probability testimony based on a lack of foundation that the perpetrator was the same ethnicity/race as the defendant, should the objection be sustained if there is an insufficient offer of proof or specific evidence that the perpetrator and the defendant are the same ethnicity/race? In our view, the answer turns on a combination of the purposes for which the evidence is offered, as well as ultimate proof of the preliminary fact upon which the evidence depends for its relevance and probative value.27
We understand respondent to be arguing that the relevant group for determining random-match probabilities is the population of possible suspects, not the perpetrator's population. This is because the purpose of determining profile frequencies is to assess the rarity of the profile match in the population from which the evidence DNA may have come, which may be a much broader population than the perpetrator's ethnic group. The population of possible suspects will often include a range of potential perpetrators, whose numbers and race depend on what is known about the circumstances of the crime. When the perpetrator's race is unknown, the rarity of the profile may be ascertained by reference to the various frequencies with which the matched profile occurs in the different racial groups to which the perpetrator might belong.
In our view, however, the population from which the evidence (perpetrator's) DNA may have come is the population of possible perpetrators, i.e., the perpetrator's population. The population of possible suspects would, logically speaking, be a smaller group, since it would include not anyone who could have committed the crime, but only those persons against whom enough evidence exists to make that individual a suspect. In any event, it seems to us that, if indeed the population of possible suspects is broader than the perpetrator's population, then the presentation of profile frequencies based on a particular ethnic database or databases is still irrelevant, absent expert testimony that said database or databases represent the frequency among all ethnic groups, i.e., the population as a whole.28 Otherwise, how can it be said that jurors have been presented with profile frequencies for the different racial groups to which the perpetrator might belong? If nothing is known about the perpetrator's ethnicity, presumably he could belong to any racial group, unless the crime took place on an island which is inhabited by members of only one ethnic population who have no contact with anyone but themselves. And, if jurors have not been presented with profile frequencies for the different racial groups to which the perpetrator might belong, how can they validly assess the rarity of the match evidence before them? If indeed the population of possible suspects is broader than the perpetrator's population, then logically the result should be use of a broader database, not merely a selection of databases from three (or another number of) ethnic groups which include the defendant, but none of which may include the perpetrator.
Again, it is essential to analyze relevance in terms of what the evidence is offered to prove. For example, suppose the victim was killed with a gun, and the defendant owns a gun. The gun arguably has some slight probative value because, without further information, it tends to show the defendant could have been the killer. However, it does not tend to prove the defendant was indeed the killer, absent evidence that this particular gun was used, or could have been used, to kill the victim.29 Moreover, if it is demonstrated the victim was killed with a .45-caliber weapon and the defendant's firearm is .22 caliber, the gun ultimately has no probative value as incriminating evidence because it could not have been the weapon used to commit the crime. We recognize that evidence is frequently admitted to prove propositions which are ultimately conclusively disproved. However, from an evidentiary standpoint that consequence simply means that disproving the preliminary fact makes the evidence not probative of any fact in issue. In effect it is rendered irrelevant by subsequent dispositive facts.
In the case of DNA evidence, the genetic profile match is relevant because it places the defendant within the pool of possible perpetrators. In order to identify the defendant as the perpetrator, however, each link in the evidentiary chain must be completed. In order to complete the final link-identification of the defendant as the perpetrator-it is not enough to show that the genetic profile is rare in a certain number of ethnic populations. Instead, it must be shown either that the genetic profile is rare in the perpetrator's ethnic group or in the general population, as these are the perpetrator's populations. Without that final link, while frequency evidence may be relevant for some purpose, it is not probative, standing alone, of the defendant's identity as the perpetrator.
What should be borne in mind is that ethnic database evidence such as used here does not establish the ethnicity of the perpetrator, only the frequency of occurrence of the matched genetic profile within an ethnic group. Therefore, use of various ethnic databases shows what the frequency (probability) of a matched profile would be if the perpetrator belonged to one of those ethnic groups. Because neither the statistical evidence nor the defendant's ethnicity establishes the ethnicity of the perpetrator, however, and because the frequency with which a genetic profile occurs varies according to ethnicity, it cannot be concluded the defendant likely left the biological evidence at the crime scene or on inculpatory matter absent some evidence that the person who left it belongs to the same ethnic group as the defendant. Thus, frequency evidence derived from ethnic groups without reference to the perpetrator's ethnicity, or without a showing that they represent not just major population groups but the general population as a whole, is not probative when offered to prove the ultimate disputed issue, i.e., the identity of the defendant as the perpetrator.
Relying on cases such as People v. Soto, supra, 21 Cal.4th 512, 88 Cal.Rptr.2d 34, 981 P.2d 958, People v. Axell, supra, 235 Cal.App.3d 836, 1 Cal.Rptr.2d 411, and United States v. Bonds (6th Cir.1993) 12 F.3d 540, respondent says that even if a percipient witness misidentifies the race of the perpetrator, DNA evidence is helpful to a jury because it provides an association between a defendant and a crime scene sample within a highly probative range or degree of statistical certainty. Respondent says: “[T]o presume that each ethnic database used requires its own evidentiary foundation, as corroborated by other witnesses, turns to [sic ] the objective nature of the DNA evidence on its head because it is the statistical evidence over a range of ethnic and racial databases that provides the jury with necessary information about profile rarity in the general population.” The particular issue before us was not raised in any of the cited cases. Moreover, in each, there was at least some independent evidence of the defendant's complicity, such that the preliminary fact of the perpetrator's ethnicity was established through that evidence and not merely by virtue of the defendant's ethnicity itself. (See, e.g., People v. Soto, supra, 21 Cal.4th at pp. 516-517, 88 Cal.Rptr.2d 34, 981 P.2d 958; People v. Axell, supra, 235 Cal.App.3d at pp. 842-844, 1 Cal.Rptr.2d 411; United States v. Bonds, supra, 12 F.3d at pp. 546-549.)
In cases in which the perpetrator's race, as described by percipient witnesses, differs from the race of the defendant, profile frequency evidence based on databases derived from both ethnic populations may be relevant because there is evidence of the preliminary fact of the perpetrator's ethnicity with respect to each ethnic group. The evidence comes in the form of eyewitness identification, or through other independent evidence (i.e., evidence which does not depend on the fact of the profile match itself or on mere reference to the defendant's ethnicity) that the defendant is the perpetrator. As a result, the profile frequency evidence is not based simply on major population groups, which may or may not include the population of possible perpetrators, or on the defendant's ethnicity without reference to the perpetrator's ethnicity. Thus, situations could exist in which statistics based on more than one ethnic database would be admissible; what is known about the circumstances of the crime (including eyewitness identification and other evidence, whether direct or circumstantial) would sufficiently establish the preliminary fact that the perpetrator is, for example, either Caucasian or Hispanic. The prosecutor could, if desired, introduce profile frequency statistics with respect to each ethnic group, not simply to give jurors a range of profile rarity, but to give jurors information from which to assess the rarity of the match within the perpetrator's possible populations.30
We question respondent's assertion that “it is the statistical evidence over a range of ethnic and racial databases that provides the jury with necessary information about profile rarity in the general population.” Unfortunately, too often the purported range of ethnic and racial databases is not presented to jurors so that they can assess profile rarity in the general population or, as would be proper, in the perpetrator's population, but so that they can assess it in the defendant's ethnic population. If the preliminary fact of the perpetrator's ethnic population has been established, and if it is the same as that of the defendant, there is no problem. If, however, jurors are presented with statistics based on the defendant's population without reference to the perpetrator's population, such evidence does not truly establish the rarity of the profile match, and so is not probative when, as is the usual case, it is offered to prove the defendant's identity as the perpetrator.
Respondent says that, in any event, Pizarro II is distinguishable from the present case because here, neither the prosecutor nor the expert witness referred to appellant's genotype or ethnicity to prove the perpetrator's genotype or ethnicity. While we agree that Pizarro involved statistics based solely on the defendant's ethnicity, in light of our foregoing discussion, we do not agree that this is sufficient to render the reasoning of the Pizarro opinions inapplicable to appellant's case.
In addition to arguing that the evidence presented in this case was admissible under sections 801 and 802, respondent presents myriad reasons why we should reexamine Pizarro II's reasoning on relevance. We decline to do so. Respondent's discussion either misinterprets our opinion, raises anew points which were considered and rejected in Pizarro II (see, e.g., Pizarro II, supra, 110 Cal.App.4th at p. 631, fn. 82, 3 Cal.Rptr.3d 21 [discussing People v. Soto, supra, 21 Cal.4th 512, 88 Cal.Rptr.2d 34, 981 P.2d 958] ), or relies on authority which we find unpersuasive.
In a footnote in Pizarro II, we stated, in part: “In summary, we think prosecutors have three options in presenting profile frequencies: (1) establish that the perpetrator more likely than not belongs to a particular ethnic population, then present only the frequency in that particular ethnic population; (2) present only the most conservative frequency, without mention of ethnicity; or (3) present the frequency in the general, nonethnic population. These options promote the goals of admitting only relevant evidence and eliminating unjustifiable and potentially prejudicial references to ethnicity and race.” (Pizarro II, supra, 110 Cal.App.4th at p. 633, fn. 85, 3 Cal.Rptr.3d 21.) Despite the fact this clearly was not our holding (which respondent recognizes), respondent argues the suggested alternatives are unreasonable and asks us to reexamine them in favor of a cautionary instruction.
We can conceive of cases in which the evidence is presented in such a way that a cautionary instruction will be sufficient to prevent any potential misperception by jurors concerning the evidence's probative force. That said, we decline to reexamine the options we suggested. We note, however, that as the science of DNA advances, some of the perceived problems with the alternatives may disappear, while other problems may arise. We assume that, at some point in the future, DNA analysis will involve testing for a sufficient number of locations so that genetic certainty will be achieved: experts will be able to testify that no two people (or perhaps only twins or clones) have the same genetic “fingerprint,” and so evidence of statistical probabilities will no longer be necessary.
We emphasize that our holding does not limit the admissibility of DNA profile evidence per se. It simply requires that the statistical evidence used to establish the frequency of the match be based on the ethnicity of the perpetrator, and not on that of the defendant, unless there is sufficient non-DNA evidence to establish, for section 403 purposes, that the defendant is the perpetrator.31
We turn now to the evidence presented in appellant's case. Where the relevance of proffered evidence rests upon preliminary foundational facts, “the proponent of such evidence has the burden of producing evidence of the preliminary fact sufficient for a trier of fact to reasonably find by a preponderance of the evidence that the fact exists. [Citations.]” (Pizarro II, supra, 110 Cal.App.4th at pp. 542-543, 3 Cal.Rptr.3d 21; see § 403.) In other words, “there [must] be sufficient evidence to enable a reasonable jury to conclude that it is more probable that the fact exists than that it does not. [Citations.]” (People v. Herrera (2000) 83 Cal.App.4th 46, 61, 98 Cal.Rptr.2d 911.)
Here, the proffered evidence is the statistical rarity of the match between appellant's genetic profile and that of the evidence (perpetrator's) DNA. What this really means is that the perpetrator's genetic profile occurs with a certain rare frequency in the population of possible perpetrators, and appellant's genetic profile matches that of the perpetrator. The preliminary fact is the perpetrator's ethnicity since, as we have discussed, absent some evidence of that fact, statistics derived from particular ethnic databases have no tendency in reason to prove the fact for which the evidence is proffered, i.e., that the perpetrator's profile is so rare in the population of possible perpetrators that, because appellant's profile matches that of the perpetrator, appellant is the perpetrator.
In the present case, there was no direct evidence of the perpetrator's ethnicity. However, direct evidence, such as a description from a percipient witness, is not the only means of establishing the preliminary fact. Instead, the requisite fact can also be established through other independent evidence (evidence not dependent upon the profile match, match frequency, or the defendant's ethnicity per se) that the defendant is the perpetrator. The logic is as follows: If independent evidence establishes that the defendant more likely than not is the perpetrator, and the defendant is Caucasian, then independent evidence establishes, for purposes of section 403, that the perpetrator more likely than not is Caucasian. The preliminary fact of the perpetrator's ethnicity is thus sufficiently established so that match frequency statistics, computed from a Caucasian database, are relevant to prove the defendant's identity as the perpetrator.32
This means of establishing the preliminary fact does not, unlike the situation in Pizarro, render the defendant's guilt the premise rather than the ultimate conclusion; the description of the perpetrator is not based on evidence of the defendant's traits, which are simply assumed to be the same as those of the perpetrator and which fill out the perpetrator's description with facts not in evidence, nor are the perpetrator's traits established by a presumption that because the defendant possesses those traits, so does the perpetrator. (See Pizarro II, supra, 110 Cal.App.4th at pp. 544-546, 3 Cal.Rptr.3d 21.) Instead, no assumption is made concerning whether the perpetrator shares the defendant's traits, but the actual evidence is examined to see whether it sufficiently establishes that defendant is the perpetrator to meet the requirements of section 403, subdivision (a). For example, it is not presumed that, because appellant possessed a ski mask and flashlights with colored lenses, those must have been the types of items used by the perpetrator. Instead, evidence presented by means of victim testimony showed that the perpetrator wore a ski mask and used a flashlight with a colored lens. Appellant possessed such items; therefore, the evidence establishes that appellant could be the perpetrator.
In Pizarro II, we expressly did not address the issue of whether independent evidence was sufficient to support the determination of the preliminary fact. (Pizarro II, supra, 110 Cal.App.4th at p. 546, fn. 12, 3 Cal.Rptr.3d 21.) Here, we reach the question and conclude sufficient non-DNA evidence was presented to establish, for purpose of a section 403 analysis, that appellant was the perpetrator with respect to the crimes committed against B.S. and S.C. We have set out the evidence at length in the unpublished portion of our opinion, ante, and decline to repeat it here. Suffice it to say that items seized from appellant's residence and car, as well as appellant's reaction when asked to give a buccal swab, are pertinent to our analysis. Although none is sufficient standing alone, when considered cumulatively, they meet the section 403 standard.
Since the record sufficiently establishes that appellant is the perpetrator and therefore shares the perpetrator's race, and appellant is Caucasian, the profile frequency statistics derived from the Caucasian database, as testified to by Smith, were relevant. The evidence with respect to the other ethnic databases was not; however, its admission did not prejudice appellant. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243; see People v. Venegas, supra, 18 Cal.4th at p. 93, 74 Cal.Rptr.2d 262, 954 P.2d 525.) 33
C. The Evidence as a Whole ***
The judgment of conviction on counts 11 and 12 (residential burglary and forcible lewd act, respectively, involving victim E.K.) are reversed and the matter is remanded to the trial court. In all other respects, the judgment is affirmed. If the People do not file and serve a written request for a new trial on counts 11 and 12 within 30 days of the date the remittitur is filed in the trial court, the trial court is directed to prepare and transmit to the appropriate authorities an amended abstract of judgment reflecting no conviction or sentence on counts 11 and 12, and correcting the errors contained in the original abstract of judgment, in accordance with our opinion.
FOOTNOTE. See footnote *, ante.
13. Further statutory references are to the Evidence Code unless otherwise stated.“Race” is variously defined as “a class or kind of individuals with common characteristics, interests, appearance, or habits as if derived from a common ancestor” or “a division of mankind possessing traits that are transmissible by descent and sufficient to characterize it as a distinct human type.” (Webster's 3d New Internat. Dict. (1986) p. 1870.) “Ethnic” means “relating to community of physical and mental traits possessed by the members of a group as a product of their common heredity and cultural tradition” (id. at p. 781), while “ethnicity” means “ethnic quality or affiliation” (ibid.). For purposes of our analysis, we ascribe to ethnicity its race-related sense and so refer to race and ethnicity interchangeably.
14. People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240; Frye v. United States (D.C.Cir.1923) 293 F. 1013.Although the federal Frye analysis has been superceded by adoption of the Federal Rules of Evidence (28 U.S.C.; Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 587, 113 S.Ct. 2786, 125 L.Ed.2d 469), the California Supreme Court has reaffirmed the Kelly-Frye test in this state (People v. Leahy (1994) 8 Cal.4th 587, 612, 34 Cal.Rptr.2d 663, 882 P.2d 321). It is now referred to as the Kelly test. (Ibid.; People v. Soto (1999) 21 Cal.4th 512, 515, fn. 3, 88 Cal.Rptr.2d 34, 981 P.2d 958.)
15. References to “Pizarro,” without a numerical designation, are to factual and legal circumstances which underlie both opinions.In Pizarro, the analyst calculated the frequency of the DNA profile using the Hispanic database because, when a subject was half-Hispanic and half-Caucasian (as was Pizarro), the FBI used the more conservative statistic. (Pizarro I, supra, 10 Cal.App.4th at p. 64 & fn. 7, 12 Cal.Rptr.2d 436.)
16. The opinion in Pizarro II was filed on July 14, 2003, several months before the start of appellant's trial.
17. As printed in the bound volume, Pizarro II refers to “the perpetrators' population.” Such references are the result of a publication error, and we have changed them to read, correctly, “the perpetrator['s] population.” Where there is a single perpetrator, the population from which he or she comes is the perpetrator's population.
18. As no challenge has been raised to the mathematical calculations themselves, we presume they are accurate and reliable. (See People v. Venegas (1998) 18 Cal.4th 47, 82-84, 74 Cal.Rptr.2d 262, 954 P.2d 525 [applying Kelly requirements to statistical calculations]; People v. Brown (2001) 91 Cal.App.4th 623, 649, 110 Cal.Rptr.2d 750 [same].)
19. Smith clarified that there are many locations on DNA, the majority of which are identical, or at least very similar, among individuals. A small percentage of locations differ from individual to individual. For STR typing, there are 15 to 17 different locations that are commonly examined in the forensic community. Smith used nine locations that account for individual differences. The DNA profile consisted of the DNA types at the nine locations. The more locations examined, the greater the chance of eliminating someone as a possible contributor.
20. Smith explained that the FBI analyzed roughly 200 samples from each of the three populations, “then a statistician came in and looked at that data to make sure it fit certain parameters so that it could be used. And once that was established, the database was published so that other people in the community could use that database.”
21. Respondent preliminarily argues that appellant failed to challenge the statistical evidence at trial and so should be deemed to have forfeited the issue for purpose of appeal. (§ 353.) A failure to object at trial to the admission of evidence on grounds that it is irrelevant or inadmissible under Kelly forfeits such a claim for appeal. (E.g., People v. Combs (2004) 34 Cal.4th 821, 847, 22 Cal.Rptr.3d 61, 101 P.3d 1007 [relevance]; People v. Ochoa (1998) 19 Cal.4th 353, 414, 79 Cal.Rptr.2d 408, 966 P.2d 442 [Kelly-Frye ].) The same holds true with respect to the improper use of statistical probability figures. (E.g., People v. Pride (1992) 3 Cal.4th 195, 242, 10 Cal.Rptr.2d 636, 833 P.2d 643; People v. Coleman (1988) 46 Cal.3d 749, 776-777, 251 Cal.Rptr. 83, 759 P.2d 1260.) Here, however, appellant contends the admitted evidence, being irrelevant and therefore having no reasonable tendency to prove any fact of consequence (see § 210), could not constitute substantial evidence of his identity as the perpetrator. A claim that a judgment is not supported by substantial evidence is not waived by a failure to object or otherwise raise the issue in the trial court. (E.g., People v. Butler (2003) 31 Cal.4th 1119, 1126 & fn. 4, 6 Cal.Rptr.3d 730, 79 P.3d 1036; People v. Saunders (1993) 5 Cal.4th 580, 602, 20 Cal.Rptr.2d 638, 853 P.2d 1093 (dis. opn. of Kennard, J.); 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 396, p. 487.) Appellant's claim is properly before us.
22. Section 350 provides: “No evidence is admissible except relevant evidence.” Section 351 states: “Except as otherwise provided by statute, all relevant evidence is admissible.” Statutes such as section 352, which gives a trial court discretion to exclude evidence if its probative value is substantially outweighed by its prejudicial effect, limit the admissibility of otherwise-relevant evidence.
23. Although our analysis applies equally to female defendants and perpetrators, we use male pronouns in our discussion because each victim in the present case described her attacker as a man.
24. As we will discuss post, the perpetrator's ethnicity need not be absolutely established-or even established by direct evidence-in order for statistical evidence concerning a particular ethnic database to be relevant.
25. For purposes of our analogy, we assume the cylinder belonged to appellant and only he had access to it. We recognize that significant differences exist between our example and the statistical evidence at issue in the present case, and we offer it for illustrative use only.
26. Section 801 provides: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”Section 802 states: “A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion. The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based.”
27. We find it important to distinguish between testimony concerning the fact of the match itself, and testimony concerning the statistical frequency (probability) with which such a match occurs. Determining whether a defendant's genetic profile matches a perpetrator's genetic profile does not involve the use of racial databases, and we are hard-pressed to envision circumstances under which testimony concerning the existence or nonexistence of a match would be irrelevant. As we discussed ante, a match itself tends to prove the defendant could be the perpetrator, while the absence of a match exonerates him. Either way, such evidence is relevant. It is evidence concerning the ethnic probability prong of DNA evidence that is in question here.
28. As previously noted, we had no such testimony in the present case. Accordingly, we have no occasion to determine the nature of the testimony that would be required to render relevant evidence concerning profile frequencies in what might be termed exemplar databases.
29. Even then, the gun's probative value as a means of identifying the defendant as the killer will vary, depending upon other evidence. For instance, evidence that the gun was in fact the murder weapon provides a stronger link to the defendant than evidence simply that the gun could have been the murder weapon.
30. Moreover, if the prosecution chose to proffer frequency evidence with respect only to the defendant's ethnic group, nothing we say would prevent the defense from seizing on the eyewitness description of the perpetrator as belonging to a different racial group as a basis for proffering frequency evidence with respect to that ethnic group.
31. Moreover, nothing we say precludes the use of a so-called “cold hit” DNA match, which most commonly occurs when crime scene DNA from an unknown perpetrator is compared to the genetic profiles maintained in a DNA database. Law enforcement officials clearly may use the fact of the match to point them to a suspect and to new avenues of investigation. The evidence they develop will then determine whether, at trial, jurors properly may be given profile frequency statistics based on a particular ethnic database, or whether another means of assessing frequency (for instance, use of a general population database or use of the single most conservative frequency without mention of ethnicity) is required. (See Pizarro II, supra, 110 Cal.App.4th at p. 633, fn. 85, 3 Cal.Rptr.3d 21.)
32. We stress that in our example, the Caucasian database statistics are relevant not merely because the defendant is Caucasian, but because sufficient non-DNA evidence establishes him as the perpetrator so that a trier of fact reasonably can conclude it is likely that he and the perpetrator share ethnicity. The Caucasian database statistics are not deemed relevant without reference to the perpetrator's ethnicity, but because the perpetrator's ethnicity is sufficiently established. If there is insufficient non-DNA evidence to establish that the defendant is, more likely than not, the perpetrator, then the defendant's ethnicity establishes nothing with respect to the perpetrator's ethnicity, and does not render relevant statistics derived from any particular ethnic database.
33. In light of this conclusion, we reject appellant's related claim that defense counsel was ineffective for failing to object to the admission of irrelevant DNA statistical evidence. Briefly stated, the burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 590 P.2d 859.) In order to establish such a claim, “a defendant must show that counsel (1) performed at a level below an objective standard of reasonableness under prevailing professional norms; and thereby (2) subjected the defense to prejudice, i.e., in the absence of counsel's failings a more favorable outcome was reasonably probable.” (People v. Hamilton (1988) 45 Cal.3d 351, 377, 247 Cal.Rptr. 31, 753 P.2d 1109.) Since the Caucasian database evidence was relevant, counsel had no grounds upon which to object to its admission. He had no obligation to raise a meritless objection. (People v. Farnam (2002) 28 Cal.4th 107, 186, fn. 36, 121 Cal.Rptr.2d 106, 47 P.3d 988; People v. Catlin (2001) 26 Cal.4th 81, 163, 109 Cal.Rptr.2d 31, 26 P.3d 357.) Although statistical evidence based on the other ethnic databases was irrelevant and presumably would have been excluded had an objection been made thereto, it is readily apparent that a more favorable outcome would not have been reasonably probable.
FOOTNOTE. See footnote *, ante.
WE CONCUR: DIBIASO and HARRIS, JJ.