The PEOPLE, Plaintiff and Respondent, v. Sammy DANIELS, Defendant and Appellant.
Sammy Daniels appeals from a judgment entered after a jury found him guilty of two counts of rape. (Pen.Code, § 261, former subd. (2).) On appeal, he contends that his motion to suppress evidence should have been granted because the seizure and analysis of his blood were unlawful. He further challenges the admission of testimony on the use of the “product rule” in the DNA analysis of the evidence. We find no error and affirm the judgment.
On January 5, 1991, a Palo Alto police officer approached appellant as he got out of a reddish-orange 1979 BMW. Appellant matched the description of a suspect in a series of incidents that included the rape of Nancy I. in November 1990. The rapist had told the victim that he owned a red BMW and a black 1978 Mercedes Benz. After approaching and talking to appellant, another officer arrested him for driving under the influence (DUI) and driving with a suspended driver's license. After his arrest a blood sample was taken and later tested. The DUI charge was dismissed and appellant pleaded guilty to driving with a suspended license.
On March 13, 1991, rape charges against another suspect were dismissed and the police reopened the investigation. Police then obtained appellant's blood group from the previous sample. Appellant was determined to have type A blood, the same type as that found in a saliva sample at the crime scene. Relying on this evidence and on the similarities in appellant's appearance to the description provided by Nancy I., the police obtained a search warrant authorizing them to gather samples of appellant's saliva, head hair, and pubic hair, and to draw more blood for ABO, PGM, and DNA analysis. In January 1993, pursuant to a second search warrant, a forensic odontologist took a dental impression of appellant's teeth, and more blood and saliva samples were obtained.
A comparison of appellant's blood to a semen sample taken from a towel at the crime scene yielded a strong probability that appellant was the rapist. In addition, the impression of appellant's teeth was “highly consistent” with a photograph of bite marks on Nancy I.'s back.
Appellant was charged by information with two counts of rape against Nancy I. on November 4, 1990. (Pen.Code, § 261, former subd. (2)). The information also alleged a prior serious felony conviction (robbery and residential burglary) within the meaning of Penal Code sections 667, subdivision (a), and 1192.7. Appellant unsuccessfully moved to suppress evidence obtained as a result of the January 5, 1991, arrest, and the case proceeded by jury trial. The jury found both counts true, and after a bifurcated trial, the court found true the prior serious felony allegation. Appellant received a sentence of 21 years in state prison.
1. Motion to Suppress (Pen.Code, § 1538.5) 1
Appellant first challenges the denial of his motion to suppress evidence. Appellant contends his blood was drawn and analyzed without probable cause to believe either that he was driving under the influence on January 5, 1991, or that he was driving with a blood alcohol level of .08 percent or more. (Veh.Code, § 23152.) In considering appellant's contentions, “[w]e defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations].” (People v. Glaser (1995) 11 Cal.4th 354, 362, 45 Cal.Rptr.2d 425, 902 P.2d 729.) In light of these principles, we cannot agree with appellant's view of the seizure and search of his blood.
a. Facts Underlying the Suppression Motion
During the early morning hours of January 5, 1991, Palo Alto police officers were observing the downtown area of the city to find a rape suspect or his car. There had been three incidents in late 1990 police were investigating, all of them connected with the 42d Street Bar and Grill on Bryant Street in Palo Alto. One was the rape of Nancy I. in November 1990; the rapist had told her he had seen her at the 42nd Street Bar and Grill. The other two involved women being followed from the Bar & Grill to their homes.
The suspect had been described as a black male 30 to 40 years old between 5'8” and 6' tall, with a stocky build, short hair, a mustache, and a round face. The officers were also told that the suspect might be wearing a leather jacket, and driving a red or “possibly dark orange” late 70's BMW.
From his unmarked police vehicle Officer John Lindsay saw a red BMW parked on Bryant Street in the target area. He then saw a black male and a white female enter the BMW. The man, later identified as appellant, matched all the descriptive features Officer Lindsay had been given about the suspect, and he was wearing a leather jacket. The officer called for backup and followed the car to a long driveway on Forest Avenue, where appellant parked his car.
Officer Mark Malmin, who responded to the call for backup, parked behind the BMW in the driveway and got out to approach appellant. Officer Malmin greeted appellant and asked if he could talk to him for a minute. As appellant stepped out of the car the officer asked to see his driver's license. Appellant produced an identification card and told the officer his license was suspended.
While talking to appellant Malmin detected a “strong odor” of alcohol on appellant's breath. Appellant's eyes were red and bloodshot, he displayed symptoms of horizontal nystagmus, and his balance and coordination appeared to be impaired. Appellant was then asked to perform field sobriety tests. He was “unsteady on his feet” and was unable to either recite or write the alphabet correctly. Appellant told the officer that he felt the effects of the alcohol. Appellant also said he had taken some medication for a toothache, but he didn't remember the name of the drug.
Appellant was asked to take a chemical test to determine the alcohol level of his blood. Appellant chose to take a breath test. Two tests were administered; they indicated a blood alcohol level of .05 and .06 percent.
Officer Malmin believed appellant was not blowing as hard into the device as he could have, and that a blood or urine test would reveal a higher blood alcohol content. The officer explained to appellant that the breath sample is not retained as evidence in court, and if he wanted to have a sample retained he could elect to have a urine or blood test. Appellant said he did not particularly want to take another test. The officer then told appellant that he believed appellant's alcohol content was higher than the intoxilyzer was indicating, and he noted that appellant had taken medication for his toothache. He asked appellant if he would take a blood test, and appellant agreed to do so.2 An hour or more later, appellant's blood was drawn. The result indicated an alcohol content of .05 percent. The blood sample was not tested for the presence of drugs.
b. The Section 1538.5 Motion
In his suppression motion, appellant contended he was unlawfully detained, and that his blood was unlawfully obtained and analyzed. Without this unlawfully obtained evidence, he argued, there was no probable cause for a search warrant. At the conclusion of the suppression hearing, however, the court found the initial contact with appellant was a consensual encounter, not a detention. Even if there was a detention, the court added, it was based on reasonable suspicion in light of the proximity of the car to the 42nd Street Bar and Grill and the similarity of appellant's appearance, clothing, and car to the description of the rapist. The court further stated that the blood sample was properly drawn pursuant to a valid arrest for driving under the influence. Responding to appellant's challenge to the typing of appellant's blood, the court found appellant had no reasonable expectation of privacy in the blood once it was lawfully drawn.
c. Lawfulness of the Blood Analysis
Appellant renews the arguments he made below, challenging the initial arrest, the administration of the blood test, and the analysis of the sample for his blood type. Appellant further contends that the court improperly excluded evidence that would have shown that the blood test was unreasonable.
Vehicle Code section 23157, subdivision (a)(1),3 deems a driver to have consented to have his blood, breath, or urine tested for alcohol if the test is incident to a lawful arrest, based on reasonable cause, for certain offenses, including driving under the influence of alcohol. As appellant observes, the prosecution had the burden of establishing that Officer Malmin had probable cause to believe that appellant had been driving under the influence or with a blood alcohol concentration of .08 percent or higher.
Driving “under the influence” means that the drugs or alcohol “must have so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties.” (Byrd v. Municipal Court (1981) 125 Cal.App.3d 1054, 1058, 178 Cal.Rptr. 480, italics omitted; People v. Enriquez (1996) 42 Cal.App.4th 661, 665, 49 Cal.Rptr.2d 710.) Appellant acknowledges that his consumption of alcohol to some extent impaired him both physically and mentally. But “some” impairment, he argues, is not enough to establish a violation of Vehicle Code section 23152. In this case, appellant maintains, there was no evidence that his ability to drive was affected to an appreciable degree, “or indeed to any degree at all.”
Officer Malmin testified that there was a strong odor of alcohol on appellant's breath, his eyes were bloodshot, he exhibited horizontal gaze nystagmus, and his balance and coordination were impaired. Appellant admitted to the officer that he was feeling the effects of the “intoxicants” he had consumed, and he failed the field sobriety test. We believe these facts were sufficient to support the officer's belief that appellant had been driving under the influence, even without a direct observation of impaired driving.
Appellant further contends that any initial suspicion of impaired driving was refuted by the breath test, which revealed a blood alcohol level of only .05 percent. Subdivision (a)(2)(C) of section 23157, however, permits an officer to request submission to a blood or urine test “if the officer has reasonable cause to believe that the person was driving under the influence of any drug or the combined influence of an alcoholic beverage and any drug and if the officer has a clear indication that a blood or urine test will reveal evidence of the person['s] being under the influence.” Since appellant appeared to be impaired, and he had taken some unidentified medication for his toothache, Officer Malmin had sufficient grounds for requesting appellant to take either a urine or blood test.
People v. Fiscalini (1991) 228 Cal.App.3d 1639, 279 Cal.Rptr. 682, on which appellant relies, is inapposite. There the court held that extraction of the defendant's blood was an unreasonable seizure because he had already submitted to a urine test, which was functionally equivalent to a blood test as evidence of blood alcohol level and the presence of drugs in the system. The Fiscalini court did not deem a blood or urine test unavailable after a breath test where the officer believes the second test will show the person was under the influence; on the contrary, the court acknowledged the provision for the second test in section 23157, subdivision (a)(2)(C). (Id. at p. 1645, fn. 8, 279 Cal.Rptr. 682.) Here Officer Malmin provided sufficient justification for requesting that appellant submit to a blood test.4
Appellant further contends that the court erred in excluding evidence that would have rebutted Officer Malmin's stated reasons for requesting a blood or urine test. The officer testified that he made this request because of the possible influence of the toothache medication and because he believed appellant had not blown hard enough into the intoxilyzer. During the suppression proceedings, appellant sought to show that the device used in the breath test would have aborted the test if appellant had not blown hard enough. He also offered evidence that it was the arresting officer's responsibility to ask the laboratory to analyze a blood sample for drugs and no drug test was performed. The court excluded the evidence as irrelevant.
We need not address the relevancy of the features of the intoxilyzer to the officer's motives for requesting further testing, because the second reason for the request was sufficient. Appellant argues that the testimony of his witnesses would have discredited Officer Malmin's asserted justification for requesting the blood test, because the officer would have had to check a box indicating he wanted the lab to perform a drug analysis on the blood. That no such request was made suggests to appellant that this asserted reason for requesting the blood sample was only an “after-the-fact justification.” The question before the court, however, was whether there was an objectively reasonable justification for drawing appellant's blood. “[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.” (Scott v. United States (1978) 436 U.S. 128, 138, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168.) “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” (Whren v. U.S. (1996) 517 U.S. 806, ----, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89.) The court did not abuse its discretion in excluding the proffered evidence on the ground that it was irrelevant.
d. Typing of Appellant's Blood
Appellant next renews his challenge to the analysis of his blood sample to determine his blood type. Relying on Skinner v. Railway Labor Executives Ass'n (1989) 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639, he contends the blood typing was an “additional search” that required an additional justification, and the court erred in finding he had no reasonable expectation of privacy once the blood was lawfully drawn.
There is no question that the analysis of appellant's blood was a search. This fact alone does not compel the procuring of a warrant, however. “Whether a search is reasonable ‘depends upon all of the circumstances surrounding the search or seizure and the nature of the search and seizure itself. [Citation.]’ (United States v. Montoya de Hernandez (1985) 473 U.S. 531, 537 [105 S.Ct. 3304, 3308, 87 L.Ed.2d 381].) The reasonableness of a particular type of search ‘is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.’ (Delaware v. Prouse (1979) 440 U.S. 648, 654 [99 S.Ct. 1391, 1396, 59 L.Ed.2d 660] fn. omitted.)” (Johnetta J. v. Municipal Court (1990) 218 Cal.App.3d 1255, 1272, 267 Cal.Rptr. 666.)
“Even in the law enforcement context, the State may interfere with an individual's Fourth Amendment interests with less than probable cause and without a warrant if the intrusion is only minimal and is justified by law enforcement purposes. [Citations.]” (Rise v. State of Oregon (1995) 59 F.3d 1556, 1559.) In this case, we agree with the People that the subsequent typing of lawfully obtained blood was a minimal intrusion that was justified by the objective of determining whether appellant should remain a suspect in the rape of Nancy I.5
This conclusion is supported by decisions of federal and other state courts under comparable circumstances. In People v. King (1997) 232 A.D.2d 111, 663 N.Y.S.2d 610, the appellate court of New York, in upholding the denial of a suppression motion, held that analysis of a blood sample obtained in an investigation of one rape could be used against the defendant in a different rape. In Washington v. State (Fla.1995) 653 So.2d 362 the Supreme Court of Florida upheld the use of hair and blood samples in a murder case after obtaining the defendant's consent to use the samples in a sexual battery case.
Even if we were to hold that a warrant was required to analyze appellant's blood type (cf. Mills v. State (1975) 28 Md.App. 300, 345 A.2d 127), we would nonetheless agree with the result reached by the trial court. As the prosecutor argued below, there was ample independent evidence supporting a search warrant. When the previous suspect was released, attention was immediately focused on appellant. Appellant fit the description provided by Nancy I.: she had described her attacker as a black male about six feet tall, 190 to 200 pounds, with a stocky, muscular build. She thought he had worn a leather jacket. The police report stated that appellant was 5'10”, 195 pounds. When arrested he was wearing a leather jacket. The rapist told the victim he had seen her at the 42nd Street Bar and Grill, near where appellant parked when he was seen by Officer Lindsay. The rapist also told the victim that he had a 1978 black Mercedes Benz and a red BMW with a white interior. Appellant was driving a red or reddish orange BMW when he was spotted in Palo Alto. These facts permit the inference that police suspected appellant before they requested analysis of his blood. Thus, even if they had not known appellant's blood type, they would have proceeded to procure a search warrant to discover this evidence, along with the more extensive and detailed information they eventually obtained through this procedure. (Cf. Nix v. Williams (1984) 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377.)
2. DNA Evidence
Criminalists tested appellant's blood as well as that of the victim, her boyfriend, and the previous suspect, and they compared those samples with the evidence found at the crime scene. Both conventional serological analysis and DNA analysis were performed. The former entailed procedures which revealed ABO group, PGM, and secretor status. According to the testimony of the criminalists who testified at trial, “ABO” refers to the system of grouping individuals into one of four groups-A, B, AB, and O. About 80 percent of people secrete their blood group substance into other body fluids, so that blood type can be determined from those substances as well. PGM is one of the enzymes examined by serologists. It occurs in four forms (1-, 1+, 2-, 2+) with a total of ten different combinations.
Appellant was determined to be a type A secretor, with a PGM type of 1-, 2+. The victim is a type O non-secretor with a PGM type of 1+. The saliva on the victim's shirt, the residue of a bite mark to her shoulder, came from a type A secretor. A semen stain left on a towel contained weak evidence of a PGM of 1+ and 2+. The saliva evidence, together with the semen stain, excluded the victim's boyfriend (type O, 1+ 2+) and the previous suspect (type B, PGM 1+), but did not exclude appellant.
In addition to the conventional serological analysis, criminalists performed two types of DNA analysis: polymerase chain reaction (“PCR”) and restriction fragment length polymorphism (“RFLP”). PCR testing, which targets and essentially copies a specific area of the DNA molecule, can be used on a smaller sample than either conventional or RFLP analysis. The PCR analysis in this case amplified the “DQ Alpha” genetic marker and the extremely variable D1S80 marker.
In RFLP analysis enzymes are used to “cut” DNA samples into fragments at specific locations. The fragments are separated according to size and processed so that they attach to their complementary locations, or loci, on different chromosomes. Banding patterns from the fragments are compared and the statistical frequency of any match is calculated. The loci studied in this case were considered rare, because they were very different across individuals.
Two laboratories were involved in the testing of the evidence. The Santa Clara County Crime Lab performed the blood typing, secretor analysis, enzyme typing, and PCR testing on the blood, saliva, and semen recovered from the crime scene, and compared that evidence with blood samples from the victim, the victim's boyfriend, and appellant. The FBI crime lab in Washington D.C. performed an RFLP analysis on dried blood samples from appellant and the victim, and on semen samples from the towel.
The saliva on Nancy I.'s shirt and on a breast swab showed a DQ Alpha type of 1.2, 3. Semen on the towel also had a DQ Alpha type of 1.2, (3) (a weak three). The victim, a 1.2, 1.2, was excluded. Appellant's blood sample, however, indicated a 1.2, 3. A test using D1S80, a more discriminating marker that could occur in 435 different combinations, produced a result of 18, 22 from the semen stain on the towel, which corresponded to the 18, 22 marker from appellant's blood sample. The victim was identified as D1S180 18, 18.
In summary, appellant's blood type, secretor status, and DQ Alpha type were all consistent with the saliva found on the shirt. His DQ Alpha, PGM, and D1S80 type were also consistent with the semen found on the towel. From the saliva evidence, the combination of ABO, DQ Alpha, D1S80 was estimated to occur in .04 percent of African Americans, or 4 in 10,000. The combination of PGM 2+, DQ Alpha of 1.2, 3, and D1S80 of 18, 22 was estimated to occur in .02 percent of the African American population, or 2 in 10,000. This figure did not include the ABO type, which would have contributed to produce an even smaller frequency.
FBI criminalist John Qwill testified as an expert in DNA testing and profiling. The RFLP analysis performed in this case yielded a visual match on all four genetic loci he compared using appellant's blood sample and the semen from the towel. The profiles for two of these loci were too light for the computer to detect, so Qwill's frequency calculation was based on only two of the loci. This made his result a conservative one. Qwill estimated the chance of an unrelated individual having a profile like appellant's to be one in 10,000 (.01 percent).
Prior to trial, appellant filed a motion in limine to exclude the results obtained from the RFLP test performed by the FBI crime lab, on the ground that the methods used to analyze the statistical frequency of any match were not generally accepted as reliable by the scientific community, thus failing the Kelly/Frye test. (See People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240.) The trial court denied the motion, and John Qwill testified regarding the results of his RFLP analysis. Appellant did not object to testimony by criminalists of the Santa Clara County Crime Lab who conducted the PCR tests on the samples submitted.
On appeal, two questions are presented: (1) Did the trial court abuse its discretion in admitting the testimony regarding the method used to arrive at the statistical frequency of the RFLP results? and (2) Was defense counsel ineffective for failing to object to the statistical frequency evidence derived from the PCR analysis?
a. RFLP Product Rule
Relying on People v. Barney (1992) 8 Cal.App.4th 798, 10 Cal.Rptr.2d 731, appellant contends that the manner in which Qwill arrived at his frequency calculations had not reached general scientific acceptance, but instead was subject to dispute among experts in the community of population genetics. Qwill used the product rule, by which he multiplied the frequencies of two independent variables to arrive at a combined figure representing the likelihood that the two variables would occur together. In Barney, the First District, Division Three, observed that the statistical probability calculation was a subject of recent scientific debate sparked by the publication of a Science article in December 1991. Because of this controversy, the court held that the currently used method, which included application of the product rule, had not achieved general acceptance among population geneticists.
The problem discussed in Barney, which appellant summarizes in pellucid terms, is one of genetic substructuring, the result of endogamy within ethnic subgroups. The tendency for mating to occur between persons of the same religion, ethnicity, or geographical location is said to refute the assumption of random mating among representatives of the broad databases used. Because of genetic substructuring, certain attributes may occur more frequently in some subgroups but appear relatively uncommon in the broader database. Unless subgroup genetic representations are taken into account, the frequencies of specific attributes will be underestimated. The practice of multiplying frequencies would only magnify the resulting error. (8 Cal.App.4th at p. 815, 10 Cal.Rptr.2d 731.)
This view, that statistical calculation by the product rule creates falsely low frequencies, is derived from an article by Richard Lewontin and Daniel Hartl in December 1991. (Lewontin & Hartl (1991) Population Genetics in Forensic DNA Typing, in 254 Science, pp. 1745-1750.) Responding to the concerns of this article, the National Research Council (NRC) released a report four months later tentatively recommending a more conservative approach they called the “ceiling principle”: After determining frequencies from different homogeneous populations, the highest occurring frequency (or 5 percent, whichever is greater) is adopted as the frequency of the specific variation, or allele, studied.
Since the publication of the Lewontin & Hartl article in December 1991 and the ensuing NRC report, numerous researchers attacked the methodology and conclusions of Lewontin & Hartl.6 They also criticized the NRC proposal as misguided, without scientific foundation, and irrational. (See, e.g., U.S. Dept. of Justice, VNTR Population Data: A Worldwide Study (1993) vol. I-A, p. 6; Devlin, Risch & Roeder (1993) Statistical Evaluation of DNA Fingerprinting: A Critique of the NRC's Report in 259 Science, p. 6; News and Comment, Geneticists Attack NRC Report as Scientifically Flawed (1993) in 259 Science, pp. 755-756.) The results of studies undertaken to test the validity of the Lewontin & Hartl assumptions showed a negligible or no effect on frequency estimates from using ethnic or geographical databases. Furthermore, what differentiation in allele frequencies among ethnic groups does occur has little impact on probability estimates in the mixed population. In other words, allele distributions are similar for different ethnic groups and even more similar for subgroups, and therefore mixed populations can be used with confidence. (VNTR Population Data: A Worldwide Study (1993) vol. I-A; Chow, et. al. The Development of DNA Profiling Database in an HAE III Based RFLP System for Chinese, Malays, and Indians in Singapore, Journal of Forensic Sciences (1993) vol. 38, no. 4; Devlin & Risch, Ethnic Differentiation at VNTR Loci, with Special Reference to Forensic Applications in 51 Am. J. Hum. Genet. (1992) 534-548; Herrin, Jr., Probability of Matching RFLP Patterns from Unrelated Individuals, 52 Am. J. Hum. Genet. (1992) 491-497.) Thus, according to these studies, the asserted problem created by genetic substructuring is, if anything, minimal.
Appellant observes that no published decisions after Barney have contradicted its conclusion that the unrestricted use of the product rule was not generally accepted among population geneticists.7 No expert testimony on this issue was presented at trial. On appeal, however, the People have made available numerous documents representing a point of view contrary to that of Lewontin & Hartl, supra. From these materials, which may be considered on appeal (cf. People v. Shirley (1982) 31 Cal.3d 18, 55-56, 181 Cal.Rptr. 243, 723 P.2d 1354), we can readily infer that the prevailing opinion among the scientific community endorses the use of the product rule without modification by ceiling principles. Consistent with the abundant data available, the NRC has departed from the position it took in its 1992 report. In 1996 the council decided that the ceiling approach was unnecessary and the unmodified product rule should generally be used. We conclude that Barney no longer supports appellant's claim of a lack of general acceptance in the scientific community; indeed, the consensus now appears to be that the product rule is a reliable measure of the probability of a DNA match between a suspect and the crime evidence. Accordingly, we reject appellant's challenge to the admission of Qwill's testimony regarding the RFLP analysis on the evidence in this case.
b. PCR Analysis
The focus of the DNA challenge below was exclusively on the statistical calculation step of the RFLP analysis. Defense counsel did not contest the use of the product rule in the Santa Clara County Crime Lab's PCR analysis. On appeal, however, appellant contends he received ineffective assistance of counsel based on his trial attorney's failure to object to this evidence.
In order to demonstrate ineffective assistance of counsel, appellant must show “both that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates, and that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings.” (People v. Price (1991) 1 Cal.4th 324, 440, 3 Cal.Rptr.2d 106, 821 P.2d 610.) “Both incompetence and prejudice must be shown.” (People v. Scott (1994) 9 Cal.4th 331, 356, fn. 18, 36 Cal.Rptr.2d 627, 885 P.2d 1040; see also People v. Price, supra, 1 Cal.4th 324, 440, 3 Cal.Rptr.2d 106, 821 P.2d 610.)
We believe appellant fails to show either prong of the ineffective assistance test. “In order to prevail on [an ineffective assistance of counsel] claim on direct appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission.” (People v. Ray (1996) 13 Cal.4th 313, 349, 52 Cal.Rptr.2d 296, 914 P.2d 846; People v. Williams (1997) 16 Cal.4th 153, 215, 66 Cal.Rptr.2d 123, 940 P.2d 710.) Appellant offers no authority for his belief that the use of the product rule was inapplicable to PCR testing; he only suggests that the reasoning of Barney, which focused on RFLP analysis, should be equally applicable to PCR methods as well.
Appellant's position is without merit. Even if Barney accurately represented the current views of population geneticists, there is no basis for extrapolating its conclusions about RFLP match frequencies to PCR procedures, a completely different method of DNA analysis. None of the materials of which we have taken judicial notice contain any evidence that the product rule is controversial in PCR testing. In its most recent report, in which it dismissed as unnecessary the ceiling method it had recommended in 1992, the NRC did not limit its general conclusion to RFLP measures. Appellant's trial attorney therefore had no reason to challenge the PCR analysis on the ground that the product rule rendered the results unreliable. And had he made such an objection, the evidence would nonetheless have been properly admitted. There is no showing here that counsel's performance was anything but competent, nor is there any basis for finding prejudice.
The judgment is affirmed.
1. Hereafter, section 1539.5.
2. The officer gave conflicting testimony as to whether he had told appellant the second test was required. At first he insisted that he had merely asked appellant to take a blood test and appellant had agreed to do so; but upon repeated questioning by defense counsel he said he believed he did tell appellant that another test was required. As the People do not argue the blood test was given with appellant's consent, we assume they concede that appellant was “required” to take the blood test.
3. Hereafter, section 23157.
4. Appellant emphasizes the fact that the officer did not know what drug appellant had ingested, and therefore would have difficulty asking for a test of the drug by the crime lab. The record supplies no basis for such an assumption. Moreover, probable cause to believe the suspect is driving under the influence of a drug does not depend on the officer's ability to identify the drug.
5. We therefore need not reach the question of whether section 23157.5, subdivision (c), itself authorized the test “in any criminal prosecution” beyond the DUI case, as the lower court ruled.
6. This court granted the People's request to take judicial notice of several reports describing studies of the statistical calculation process of DNA testing.
7. The most obvious explanation for the absence of published decisions contrary to Barney is that several cases addressing this issue are pending in the Supreme Court. (E.g., Peoplev. Givens, No. S060563; Peoplev. Smith, No. S052233; Peoplev. Amundson, No. S047242; Peoplev. Marlow, No. S046966; Peoplev. Soto, No. S044043)
ELIA, Associate Justice.
PREMO, Acting P.J., and WUNDERLICH, J., concur.