PEOPLE v. WILDS

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Court of Appeal, Second District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Henry WILDS, Defendant and Appellant.

No. B051544.

Decided: January 12, 1995

Fern M. Laethem, State Public Defender, under appointment by the Court of Appeal, Lisa J. McLeod and Thomas A. Schaaf, Deputy State Public Defenders, for defendant and appellant. Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Asst. Atty. Gen., Robert M. Snider, Linda C. Johnson and Elaine F. Tumonis, Deputy Attys. Gen., for plaintiff and respondent.

We address the question of whether the restriction fragment length polymorphism (RFLP) method of DNA analysis 1 is admissible in California courts under People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240.2  We write on a slate which is becoming crowded throughout the nation;  nonetheless, it is not quite full, especially in California where our Supreme Court has not yet spoken.

Because several California Court of Appeal cases have now addressed the subject (People v. Axell (1991) 235 Cal.App.3d 836, 1 Cal.Rptr.2d 411;  People v. Barney (1992) 8 Cal.App.4th 798, 10 Cal.Rptr.2d 731;  People v. Pizarro (1992) 10 Cal.App.4th 57, 12 Cal.Rptr.2d 436;  People v. Wallace (1993) 14 Cal.App.4th 651, 17 Cal.Rptr.2d 721;  People v. Soto (1994) 30 Cal.App.4th 340, 35 Cal.Rptr.2d 846;  People v. Venegas (1995) 31 Cal.App.4th 234, 36 Cal.Rptr.2d 856), we resist the temptation to try our hand at detailed scientific explanations, being content to refer to the extensive descriptions of RFLP analysis which have preceded us.   Our opinion focuses on what has been described as the conflict in case law on admissibility of DNA evidence under Kelly.   The history and the present status of that “conflict” are summarized as follows.

In a scholarly opinion published in October 1991, the Second Appellate District, Division Six, determined that the scientific technique of DNA profiling was generally accepted in the relevant scientific community and that it otherwise satisfied Kelly.  (People v. Axell, supra, 235 Cal.App.3d 836, 1 Cal.Rptr.2d 411.)   Two months later, a criticism of one aspect of DNA profiling was published in the journal Science.3  Primarily as a result of this criticism, the First Appellate District, Division Three, concluded that the “scientific landscape” had changed considerably, and that DNA profiling was no longer generally accepted in the scientific community.  (People v. Barney, supra, 8 Cal.App.4th 798, 10 Cal.Rptr.2d 731.)

As discussed infra, we question Barney's perception that a blight had come over the landscape of general acceptance.   However, even if it did, we, like the Fourth Appellate District, Division Three (People v. Soto, supra, 30 Cal.App.4th at pp. 361–362, 35 Cal.Rptr.2d 846), find that the blight has now passed.   We are back to the analysis set forth in Axell.   The question of whether genetic profiling evidence satisfies Kelly has been unequivocally answered in the affirmative.

BACKGROUND

On the evening of December 27, 1986, Elaine B. was waiting for the elevator in the subterranean garage of her North Hollywood apartment complex when an African–American 4 male wearing a mask made of “stretchy” material put his hand over her mouth and held a knife to her neck.   The man asked how much money she had.   Ms. B. replied that she had $15 or $20 and gave him her purse.   The man took the purse and forced Ms. B. to accompany him to an unlocked room in the garage.   Once inside, he ordered her to disrobe and committed acts of forcible oral copulation and forcible rape upon her.   At trial, Ms. B. testified that appellant resembled her assailant.

On the evening of February 21, 1987, Denise M. was getting out of her car in the subterranean garage of her North Hollywood apartment complex when an African–American male wearing a mask made of “knit-like” material put his hand over her mouth and held a knife to her side.   The man asked for her purse, and Ms. M. told him that it was on the seat of her car.   The man then committed acts of forcible oral copulation and forcible rape upon Ms. M.   He also took the cash from her purse and various items from her car.

On the evening of April 2, 1987, as Deborah Hess was pulling into her parking space in the subterranean garage of her North Hollywood apartment complex, she saw appellant enter the garage.   Hess became frightened, drove out of the garage, and summoned the police.

Appellant, who matched the description Hess had provided to the police, was apprehended soon thereafter as he rode a bicycle a short distance from the apartment complex.   A knife was found near the bicycle.   Appellant was arrested and taken to the police station, where he was told to remove his clothing.   While appellant was taking off his pants, nylon stockings fell to the floor.   When asked the purpose of the stockings, appellant responded that they were to wear on his head.5

The day after the Hess incident, the police searched an apartment which appellant shared with a woman and her three children.   The search produced a gym bag which had been taken during the rape and robbery of Denise M.   A later search of the apartment produced a necklace which had also been taken from Ms. M.

DNA extracted from appellant's blood was compared with DNA extracted from sperm cells in vaginal aspirates taken from Ms. B. and Ms. M.6  Expert testimony established that the DNA from these three sources was identical.   The probability that the DNA in the sperm cells belonged to someone other than appellant was conservatively estimated at 1 in 4.5 million.7

In defense, an expert witness testified that the prosecution evidence regarding genetic profiling was unreliable in various respects.   A lay witness testified that she saw appellant at a bingo game on the evening that Ms. M. was assaulted.

A jury found appellant guilty of robbery, two counts of forcible oral copulation, and rape of Ms. B.;   robbery, three counts of forcible oral copulation, and rape of Ms. M.;   and burglary of Hess's residence.   The jury further found that appellant had used a knife in the commission of the robberies and the sex offenses.   In a bifurcated court trial, appellant was found to have sustained four prior felony convictions.

ISSUES

Appellant contends that:

I. Genetic profiling does not satisfy Kelly.

II. Notes prepared by a laboratory analyst were improperly admitted into evidence.

III. Evidence seized during parole searches of his apartment should have been suppressed.

DISCUSSION

IAdmissibility of Genetic Profiling Under KellyA. Introduction to RFLP Genetic Profiling

Every human cell that has a nucleus contains two sets of chromosomes, one of which is inherited from each parent.   Each chromosome has thousands of genes, and each gene occupies a particular site on the chromosome.   The molecular component of the chromosome and its genes is deoxyribonucleic acid (DNA).   The DNA molecule resembles two parallel, spiral staircases.   The steps are made up of four chemical components.   Two of these chemical components are present on each step, and they are able to combine with the other two chemical components in only a limited number of ways.   The two chemical components on each step are called “base pairs,” and there are about 3 billion base pairs in a DNA molecule.   The sequence of these base pairs is identical for each cell in a person's body.   Except for identical twins, the order in which the 3 billion base pairs are arranged is unique to each person.  (See People v. Axell, supra, 235 Cal.App.3d at pp. 844–846, 1 Cal.Rptr.2d 411;  People v. Barney, supra, 8 Cal.App.4th at p. 805, 10 Cal.Rptr.2d 731.)

The majority of the base pair sequences in each person's DNA molecule is the same, reflecting shared human characteristics.   However, some sequences of base pairs, whose purpose is unknown, vary greatly from person to person.

Restriction fragment length polymorphism (RFLP) is a method of comparing those base-pair sequences of a DNA molecule which are greatly varied, rather than the entire 3 billion base pairs.   It was described in great detail in Axell (235 Cal.App.3d at pp. 844–848, 1 Cal.Rptr.2d 411) and Barney (8 Cal.App.4th at pp. 805–810, 10 Cal.Rptr.2d 731).   The method consists of three steps:  processing, matching, and statistical calculation.8

In the processing step, at least two samples of DNA are compared with each other.   One sample consists of DNA which has been extracted from biological material (e.g., bodily fluids, tissue, hair) thought to belong to the perpetrator.   The other sample is taken from the suspect's blood.   “Restriction enzymes,” which are applied to the samples, cut the DNA molecule at different sequences of base pairs, thereby creating thousands of fragments.   The fragments are subjected to procedures which permit them to be visualized in the form of separate bands.

The matching step determines whether the (usually four) band patterns of the suspect's DNA are identical to the sample(s) to which they are compared.

The statistical calculation step involves the interpretation of the meaning of a match.   This step would not be necessary if entire DNA sequences were being compared.   However, because the RFLP technique enables comparison of only limited (again, usually four) portions of the DNA molecule, a calculation must be made to determine whether the match declared in the second step reflects the coincidence that two different people share identical sequences of base pairs at the targeted sites, or whether it establishes that the DNA sequences being compared came from the same person.

To perform this step, the laboratory calculates how frequently each portion of the DNA molecule being analyzed appears in data bases which are maintained for different races.   Utilizing the “product rule,” 9 the frequencies with which each portion appears in the relevant data base are multiplied by each other.   The product of this multiplication reflects how often the suspect's genetic profile would be expected to appear in a given racial population on a random or coincidental basis.

B. The Kelly Standard

 Under Kelly, evidence based upon application of a new scientific technique such as DNA profiling may be admitted only after the reliability of the method has been established, usually by the testimony of an expert witness who first has been properly qualified.   The proponent of the evidence must also demonstrate that correct scientific procedures were used.   (17 Cal.3d at p. 30, 130 Cal.Rptr. 144, 549 P.2d 1240;  see also People v. Leahy, supra, 8 Cal.4th at p. 594, 34 Cal.Rptr.2d 663, 882 P.2d 321.)

The scientific technique on which evidence is being offered must have gained general acceptance in the particular field to which it belongs.  (People v. Brown (1985) 40 Cal.3d 512, 529, 230 Cal.Rptr. 834, 726 P.2d 516, revd. on other grounds sub nom.   California v. Brown (1987) 479 U.S. 538, 107 S.Ct. 837, 93 L.Ed.2d 934.)  Kelly “does not demand that the court decide whether the procedure is reliable as a matter of scientific fact:  the court merely determines from the professional literature and expert testimony whether or not the new scientific technique is accepted as reliable in the relevant scientific community and whether ‘ “scientists significant either in number or expertise publicly oppose [a technique] as unreliable.” ’  [Citations.]”  (People v. Axell, supra, 235 Cal.App.3d at p. 854, 1 Cal.Rptr.2d 411.)   “ ‘General acceptance’ under Kelly means a consensus drawn from a typical cross-section of the relevant, qualified scientific community.”  (People v. Leahy, supra, 8 Cal.4th at p. 612, 34 Cal.Rptr.2d 663, 882 P.2d 321.)

C. The Kelly Issue in This Case

1. Introduction

Pursuant to Evidence Code section 402, a pretrial hearing was held in this case to determine whether RFLP DNA profiling satisfies Kelly.   The specific evidence under consideration was an analysis of the comparison of a sample of appellant's DNA with samples of the perpetrator's DNA which had been taken from the vaginal aspirates of the sexual assault victims.   The analysis was conducted by Cellmark Diagnostics of Germantown, Maryland.

The hearing was held from June through December 1989, and involved the testimony of seventeen expert witnesses—eight for the prosecution, eight for the defense, and one who ultimately testified for both sides.   The court ruled in favor of the prosecution and permitted the DNA analysis to be admitted into evidence at trial.

2. Appellant's Attack on the Processing and Matching Steps of DNA Profiling

Appellant attacks all three steps of the DNA analysis in this case.   Similar attacks were made in Axell and Barney based on trial court records remarkably similar to the record in this case.10  In Axell, each attack was rejected.  (235 Cal.App.3d at p. 868, 1 Cal.Rptr.2d 411.)   Although disagreeing with Axell on statistical calculation (see infra ), the Barney court agreed with Axell's conclusions regarding the processing and matching steps of the DNA analysis.  (8 Cal.App.4th at pp. 811–824, 10 Cal.Rptr.2d 731.)

The People assert that we are bound by Axell 's and Barney 's approval of the processing and matching steps of RFLP analysis based on the observation in Kelly that, “once a trial court has admitted evidence based upon a new scientific technique, and that decision is affirmed on appeal by a published appellate decision, the precedent so established may control subsequent trials․”  (People v. Kelly, supra, 17 Cal.3d at p. 32, 130 Cal.Rptr. 144, 549 P.2d 1240.)   We reject the notion that such adherence to Axell and Barney is mandatory.

 The Kelly hearing in this case took place in 1989, well before the “precedent” of those 1991 and 1992 appellate decisions had been “established.”   Moreover, a decision of a Court of Appeal is not binding on other Courts of Appeal, even if they are within the same appellate district.   (Los Angeles Police Protective League v. City of Los Angeles (1985) 163 Cal.App.3d 1141, 1147, 209 Cal.Rptr. 890, disapproved on other grounds in Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 427, fn. 28, 253 Cal.Rptr. 426, 764 P.2d 278.)

 However, although we are not bound by Axell and Barney, our “limited de novo review” of the record in this case (People v. Barney, supra, 8 Cal.App.4th at p. 810, 10 Cal.Rptr.2d 731;  People v. Reilly (1987) 196 Cal.App.3d 1127, 1135, 242 Cal.Rptr. 496) reveals no areas of disagreement with the discussions in Axell and Barney regarding the processing and matching steps of DNA analysis.11  Consequently, we hold that the processing and matching steps of the DNA analysis undertaken in this case are satisfactory under Kelly.12  (Cf. People v. Morris (1991) 53 Cal.3d 152, 206–208, 279 Cal.Rptr. 720, 807 P.2d 949.)

3. Appellant's Attack on the Statistical Calculation Step of DNA Profiling

a. Substructuring

The DNA analyses conducted in this case and in Axell and Barney assume that the data bases utilized to determine the frequency with which a specific genetic characteristic appears within a target group are sufficiently large to be truly representative of that group.   These analyses further assume that each group is homogeneous;  i.e., that their members have mated within their respective groups at random, and that the frequency within which any individual's genetic pattern will occur within that group is therefore constant.   The prosecution in Axell, Barney, and the instant case presented evidence in support of the assumption of homogeneity.   The defense in each case presented evidence to suggest a lack of homogeneity arising from a phenomenon known as substructuring, which typically results from non-random mating and is more likely to occur among persons of like religion or ethnicity or among those who live within close geographical distance.

At the Kelly hearing in this case, prosecution witness Dr. Kenneth Kidd 13 acknowledged that substructuring was a theoretical possibility, but asserted it could be accounted for by using conservative estimates of the probability of a random match, as had been done in his calculations.14

For the defense, Dr. Laurence Mueller 15 testified that the concept of substructuring was supported by a study undertaken to determine genetic variations in the populations of Hiroshima and Nagasaki following World War II, and from nonrelated experimental data regarding high rates of gene mutation within certain population groups.   Nonetheless, Dr. Mueller conceded that substructuring was merely a theoretical possibility which could not be definitively established until more population data were collected.

In the prosecution's rebuttal case, Dr. Patrick Michael Conneally 16 testified that he had read Dr. Mueller's testimony in this case as well as in Axell.   Conneally had studied “highly inbred populations” within the United States, such as the Amish, and was familiar with the studies of Japanese populations.   Conneally was of the opinion that Mueller was “making mountains out of molehills from a scientific point of view.”   According to Conneally, even the regular intermarriage of the Amish would not have a significant effect on the frequency with which DNA sequences would appear in the population, and Cellmark's assumptions regarding population equilibrium were correct.

In ruling in the prosecution's favor at appellant's Kelly hearing, the trial court found the prosecution experts were better qualified and had less interest in the outcome of the hearing than the defense experts.

b. People v. Axell

As noted in footnote 10, ante, the court in People v. Axell, supra, 235 Cal.App.3d 836, 1 Cal.Rptr.2d 411, reviewed a Kelly record which was substantially the same as the record below.   On the issue of substructuring, the court referred to the testimony of Drs. Kidd and Conneally which was presented in that case.   After a comprehensive analysis, the Axell court concluded that this evidence overcame defense fears about the possibility of substructuring, and established that Cellmark's methodology of calculating the statistical probability of a coincidental match was generally accepted in the scientific community.17  (235 Cal.App.3d at pp. 867–868, 1 Cal.Rptr.2d 411.)   Thus, concluded Axell, “[a]ny question or criticism of the size of the data base or the ratio pertains to weight of the evidence and not to its admissibility.”  (Id. at p. 868, 1 Cal.Rptr.2d 411.)

c. Post–Axell publications

Axell was decided in October 1991.  People v. Barney, supra, 8 Cal.App.4th 798, 10 Cal.Rptr.2d 731, was decided in August 1992.   In the intervening months, a journal article and a scientific report were published which would, according to the Barney court, undermine the conclusion reached in Axell regarding substructuring.

First, the December 20, 1991 edition of the journal Science contained an article by Harvard University Professor Richard C. Lewontin and Washington University Professor Daniel L. Hartl which attacked the failure of DNA statistical calculation analysis to account for substructuring.  (Lewontin & Hartl, Population Genetics in Forensic DNA Typing (Dec. 20, 1991) Science, vol. 254, p. 1745.)   In another article appearing in the same issue of Science, University of Texas Professor Ranajit Chakraborty and Dr. Kenneth Kidd, who testified in this case, defended the practice of performing statistical calculations of probability estimates without regard to substructuring.  (Chakraborty & Kidd, The Utility of DNA Typing in Forensic Work (Dec. 20, 1991) Science, vol. 254, p. 1735.)

In April 1992, the National Research Council (NRC), members of which are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine, issued a report on genetic profiling.  (National Research Council, DNA Technology in Forensic Science (1992).)   The NRC report acknowledged that substructuring was controversial, but made no attempt to resolve the controversy.   Rather, the report assumed “for the sake of discussion” that substructuring existed, and suggested methods to ensure that probability estimates rendered as part of the statistical calculation step of DNA analysis would be sufficiently conservative to account for it.  (NRC Rep., op. cit. supra, at pp. 12–15, 79–85.)

d. People v. Barney

 In People v. Barney, supra, 8 Cal.App.4th at page 816, 10 Cal.Rptr.2d 731, the court noted that, although briefing predated the Science articles and the NRC report, the case raised the same questions regarding substructuring as had been discussed in the recent literature.  Barney observed that appellate courts sometimes “review scientific literature outside the record” (id. at p. 810, 10 Cal.Rptr.2d 731), and proceeded to do so.18

As characterized by Barney, “Lewontin and Hartl claim that, contrary to the assumption of random mating, ethnic subgroups within each data base tend to mate endogamously (i.e., within a specific subgroup) with persons of like religion or ethnicity or who live within close geographical distance.”  (8 Cal.App.4th at p. 815, 10 Cal.Rptr.2d 731.)   As a result of failing to take substructuring into account, statistical calculations based on present data bases which utilize the product rule “may be in error by two or more orders of magnitude (e.g., 1 in 7.8 million could really be 1 in 78,000).19  [Citation.]”  (8 Cal.App.4th at p. 815, 10 Cal.Rptr.2d 731.)   On the other hand, noted Barney, Chakraborty and Kidd strongly disagree with Lewontin and Hartl, contending the latter exaggerated both the extent of endogamy and the effect of substructuring.  (Ibid.)

Barney also refers to an introductory article in the relevant issue in Science which characterizes Lewontin and Hartl as “ ‘two of the leading lights of population genetics' who ‘have support of numerous colleagues.’  [Citation.]”  (Id. at pp. 815–816, 10 Cal.Rptr.2d 731.)   According to Barney, “[t]he introductory article describes the debate as ‘bitter’ and ‘raging,’․  [¶] ‘Dispassionate observers, who are few and far between, say that the technical arguments on both sides have merit․’  [Citation.]”  (Id. at p. 816, 10 Cal.Rptr.2d 731.)   Finally, notes Barney, the NRC report also acknowledges the existence of the controversy.   (Ibid.)

Based on the foregoing, the Barney court concluded as follows:  “Whatever the merits of the prior decisions on the statistical calculation process—including Axell—the debate that erupted in Science in December 1991 changes the scientific landscape considerably, and demonstrates indisputably that there is no general acceptance of the current process․  Simply put, Axell has been eclipsed on this point by subsequent scientific developments.   In reaching a conclusion different from that in Axell, we do not express disagreement with Axell 's reasoning at the time, but rather have progressed to a point on the continuum of scientific debate which neither the Axell court nor the two trial courts in the present cases could have anticipated.” 20  (8 Cal.App.4th at pp. 820–821, 10 Cal.Rptr.2d 731.)

e. Our comments on Barney

Barney 's conclusion that Axell had been undermined effected what has been described as a split of authority in California on the admissibility of DNA evidence under Kelly.21  We find this “split” to be more perceived than real.

Lewontin and Hartl did not purport to provide any evidence that substructuring in fact skewed the statistical calculation step of RFLP analysis.   Rather, their article in Science did nothing more than address the same issues that had been raised by the defense, and rejected, in Axell.   Thus, the article was “significant” only in that these two highly regarded scientists had expressed the same concerns that had previously been expressed by other scientists, but of presumably lesser stature.

Similarly, the NRC did not validate the existence of substructuring.   Indeed, in a preliminary “clarifying statement,” the NRC committee specifically recommended against a moratorium on the use of forensic DNA analysis in both criminal and civil cases during the period that its recommendations were being considered.  (NRC Rep., op. cit. supra, at unnumbered page between the “preface” and the “Contents.”)

We need not decide whether, given the same publications before the court in Barney, we would have reached the same result.   We say this since, to the extent the Lewontin and Hartl article and the NRC report may have undermined Axell, those publications have now been eclipsed by further developments which demonstrate that the decision in Axell was correct.

f. People v. Soto and recent publications

 In People v. Soto, supra, 30 Cal.App.4th 340, 35 Cal.Rptr.2d 846, the Kelly hearing was held after Axell had been decided and the Lewontin and Hartl article had been published, but before Barney was decided.   At the Kelly hearing, the experts addressed the question of whether the article demonstrated that the scientific community no longer generally accepted forensic DNA analysis.  (Id. at p. 353, 35 Cal.Rptr.2d 846.)

As summarized in Soto, the prosecution experts, including two who testified in this case,22 uniformly attacked the scientific methodology as well as the conclusions of Lewontin and Hartl.  (Id. at p. 351, 35 Cal.Rptr.2d 846.)   Moreover, prosecution expert Dr. Chakraborty (the coauthor with Dr. Kidd of the “rebuttal” article in Science) had developed a series of tests to review and examine the assumptions of the Lewontin and Hartl article, and had produced “ ‘hard data’ proving there was no substructuring.”  (Id. at pp. 352–353, fn. 15, 35 Cal.Rptr.2d 846.)   The defense experts, including two who testified in this case,23 “[e]ssentially ․ feared application of the product rule was inaccurate because of the possibility of human population substructuring․”  (Id. at p. 351, 35 Cal.Rptr.2d 846, emphasis in original.)

The Soto court affirmed the trial court's determination that forensic DNA evidence still enjoyed “general acceptance” by the relevant scientific community.24  Not only had Chakraborty developed “hard data” to refute fears about the effects of substructuring, but, following the Kelly hearing, the FBI had published a five-volume study on DNA profiling which had reached the following conclusions:  (1) the population data bases used for probability estimates of a random match are sufficiently large for forensic analysis;  (2) neither ethnicity nor area of residence substantially affect probability estimates;  (3) the product rule by which probability estimates are calculated is valid;  and (4) alternative procedures such as suggested by the NRC Report to assure that probability estimates are sufficiently conservative are unnecessary.25  (U.S. Dept. Justice, FBI Rep., VNTR Population Data:  A Worldwide Study (1993) vol. I–A, p. 2;  see also People v. Soto, supra, 30 Cal.App.4th at p. 357, 35 Cal.Rptr.2d 846.)

An even more recent publication, also discussed by Soto, further contributes to the conclusion that statistical calculation using the product rule satisfies Kelly.   In the October 27, 1994 issue of the journal Nature, one of the original opponents of RFLP analysis teamed with a former adversary to proclaim that “[t]he DNA fingerprinting wars are over.”  (Lander & Budowle, DNA Fingerprinting Dispute Laid to Rest, Nature (Oct. 27, 1994) vol. 371, p. 735.)

In this article, Lander (a prominent early critic of DNA profiling) and Budowle (one of the principal architects of the FBI's DNA program) aptly described themselves as “represent[ing] the range of scientific debate.” 26  (Lander & Budowle, op. cit. supra, at p. 735.)   Lander and Budowle criticized the NRC for being overly conservative in its recommendations for dealing with the possibility of substructuring.   They suggested that the recommendations were premised on Lewontin and Hartl's “flawed analysis,” and had “allowed a minor academic debate to snowball to the point that it threatens to undermine the use of DNA fingerprinting.”  (Op. cit. supra, at p. 737, fn. omitted.)

g. Conclusion

The parties in this case have directed our attention to, inter alia, the Lewontin and Hartl article, the NRC report, the FBI report, and the Lander and Budowle article.   We, like the Barney and Soto courts, have considered the effect of such post-judgment publications on the trial court's determination that RFLP DNA analysis satisfies Kelly.27  There is little left to say.

We are mindful of the admonition in Kelly that expert scientific testimony has the potential to create a misleading aura of certainty, and that restraint in admitting evidence of a new scientific technique is especially warranted where its purpose is to identify a criminal defendant.  (People v. Kelly, supra, 17 Cal.3d at pp. 31–32, 130 Cal.Rptr. 144, 549 P.2d 1240.)   But even exercising the greatest possible restraint, it is apparent that, as required by Leahy, RFLP DNA profiling has achieved “a consensus drawn from a typical cross-section of the relevant, qualified scientific community.”  (8 Cal.4th at p. 612, 34 Cal.Rptr.2d 663, 882 P.2d 321.)

The Axell court concluded “that the method used by Cellmark ․ to arrive at its data base and statistical probabilities was generally accepted in the scientific community.”  (235 Cal.App.3d at p. 868, 1 Cal.Rptr.2d 411.)   Despite intervening circumstances, that conclusion remains valid today.   The trial court in this case did not err in ruling that DNA evidence could be admitted at appellant's trial.28

II & III **

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   RFLP, which is more fully described infra, is the only method of DNA analysis discussed in this opinion.   It is sometimes also referred to in this and other opinions as “DNA profiling,” “DNA analysis,” “RFLP analysis,” “genetic profiling,” and “genetic fingerprinting.”   To date, it is the only method of forensic DNA analysis on which California appellate courts have ruled.

2.   Since 1976, when Kelly adopted and elaborated upon a standard set forth in Frye v. United States (D.C.Cir.1923) 293 F. 1013, the California test for admissibility of evidence based upon application of a new scientific technique has been known as “Kelly /Frye.”   In Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, the United States Supreme Court found that Frye had been abrogated by the Federal Rules of Evidence.   Recently, the California Supreme Court declined to revise the “Kelly /Frye ” test for this state, but suggested that it now be referred to simply as the “Kelly ” formulation.  (People v. Leahy (1994) 8 Cal.4th 587, 591, 34 Cal.Rptr.2d 663, 882 P.2d 321.)   We shall follow that suggestion in this opinion.

3.   The criticism involved whether a phenomenon known as “substructuring” invalidated the estimates as to the probability that the suspect's genetic profile might be shared by others.

4.   We acknowledge the imprecision of the term “African–American,” but utilize it based on its current usage as a generalized designation for members of appellant's race.

5.   In addition to the factual similarities among the three offenses which have already been described, the three victims were of the same general age and lived in close proximity to each other and to appellant.   With respect to the sexual assaults, appellant committed the sex acts in the same order, told the victims that he would not hurt them, returned keys which he had taken, and required the victims to remain unclothed as he left.

6.   A vaginal aspirate is a saline wash of the vaginal vault.   It removes loose biological material from the vault.

7.   The evidence established that, at the time of appellant's crimes, approximately 10 million male African–Americans over the age of 14 lived in the United States.

8.   The cases and scientific publications also refer to the third step as the “statistical analysis” or “probability estimate” step.

9.   “In very general terms, the ‘ “product rule” ․ states that the probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each of the events will occur.’  [Citation.]”  (People v. Soto, supra, 30 Cal.App.4th at p. 345, fn. 3, 35 Cal.Rptr.2d 846.)

10.   Ten of the 14 experts who testified in this case also testified at the Kelly hearing in Axell, which was held in March through August 1989 and also involved an analysis conducted by Cellmark.  (235 Cal.App.3d at pp. 842, 848–852, 1 Cal.Rptr.2d 411.)   The transcript of the Axell hearing was admitted into evidence in Barney, which involved DNA analyses conducted separately by Cellmark and the Federal Bureau of Investigation.  (8 Cal.App.4th at pp. 803–804, 811, 10 Cal.Rptr.2d 731.)

11.   Our agreement extends to the holding in Axell that Cellmark's scientific procedures for conducting DNA analyses are adequate under the “third prong” of Kelly, i.e., whether correct scientific procedures were used.  (235 Cal.App.3d at pp. 862–863, 1 Cal.Rptr.2d 411;  but see also People v. Leahy, supra, 8 Cal.4th at p. 600, 34 Cal.Rptr.2d 663, 882 P.2d 321, comparing People v. Farmer (1989) 47 Cal.3d 888, 913, 254 Cal.Rptr. 508, 765 P.2d 940 [careless testing affects weight of evidence, not admissibility] with People v. Barney, supra, 8 Cal.App.4th at pp. 823–824, 10 Cal.Rptr.2d 731 [Kelly 's third prong requirement is an element of the admissibility determination].)

12.   In Soto, the defendant apparently did not even bother to contest the first two steps of DNA analysis, arguing solely that the statistical calculation step was defective.  (People v. Soto, supra, 30 Cal.App.4th at p. 347, 35 Cal.Rptr.2d 846.)

13.   Dr. Kidd is a professor of human genetics, psychiatry and biology at Yale University.   He is the director of the Human Gene Mapping Library and has published widely in the field.   Dr. Kidd oversees a research laboratory which conducts RFLP DNA analyses.

14.   Cellmark's original probability estimate of a random match included a calculation of 1 in 186 billion.   Using a more conservative approach, the estimate was reduced to 1 in 66 million.   At the Kelly hearing, Dr. Kidd applied “statistically unreasonably conservative” assumptions to Cellmark's data and calculated a probability of 1 in 1.86 million.  (Based on an expanded data base which was available at the time of trial, Dr. Kidd revised his probability estimate to 1 in 4.5 million.)

15.   Dr. Mueller is an ecologist and population geneticist who is an associate professor in the Department of Ecology and Evolutionary Biology at the University of California, Irvine.   He works primarily with populations of fruit flies.

16.   Dr. Conneally is a human geneticist and a professor of medical genetics and neurology at the Indiana University Medical Center.

17.   Before reaching this conclusion, the Axell court found that the calculation step is an integral part of RFLP analysis.   It therefore rejected the People's argument that this step is not governed by Kelly because it implicates only statistical probability, not scientific technology.  (Id. at p. 867, 1 Cal.Rptr.2d 411.)   Similar conclusions were reached by the courts in People v. Barney, supra, 8 Cal.App.4th at pages 817–818, 10 Cal.Rptr.2d 731;  and People v. Soto, supra, 30 Cal.App.4th at pages 355–356, 35 Cal.Rptr.2d 846.   The People have raised the same argument in this case.   We reject it for the same reasons expressed in the cited cases.

18.   Although appellate review is typically restricted to the record created at trial, limited de novo review under Kelly permits the courts to consider scholarly treatises and journals which are not part of the trial record.  “If the scientific literature discloses that the technique is deemed unreliable by ‘ “scientists significant either in number or expertise ․,” ’ the court may safely conclude there is no general acceptance.  (People v. Reilly (1987) 196 Cal.App.3d 1127, 1134 [242 Cal.Rptr. 496], quoting People v. Shirley (1982) 31 Cal.3d 18, 56 [181 Cal.Rptr. 243, 723 P.2d 1354].)   Even if the technique was previously determined correctly to have been generally accepted, the converse may subsequently be shown by evidence ‘reflecting a change in the attitude of the scientific community.’  (People v. Kelly, supra, 17 Cal.3d at p. 32 [130 Cal.Rptr. 144, 549 P.2d 1240].)”  (People v. Barney, supra, 8 Cal.App.4th at pp. 810–811, 10 Cal.Rptr.2d 731, fn. omitted.)

19.   It could also be 1 in 780 million.  (Lewontin & Hartl, op. cit. supra, at p. 1749.)

20.   The Barney court did not rule on any aspect of the defendants' attack on the statistical calculation step of DNA analysis other than substructuring.   Like Barney, we limit our discussion to this aspect of the calculation step.   However, unlike Barney, we specifically endorse Axell 's determination that the entire statistical calculation step, as well as the processing and matching steps, satisfies Kelly.

21.   People v. Pizarro, supra, 10 Cal.App.4th 57, 12 Cal.Rptr.2d 436, which postdated Barney by two months, rejected a DNA analysis performed by the FBI, finding that the prosecution had not presented impartial expert testimony which could establish general acceptance in the scientific community.  (Id. at pp. 79–80, 12 Cal.Rptr.2d 436.)   Pizarro did not discuss the holding of Barney.

22.   Drs. Kenneth Kidd and Bruce Kovacs.

23.   Drs. Laurence Mueller and Seymour Geisser.

24.   Soto noted as an aside that errors in admitting DNA evidence in Barney and in People v. Wallace, supra, 14 Cal.App.4th 651, 17 Cal.Rptr.2d 721 (which was decided by the same court as Barney ), had been deemed harmless under the facts of those cases.  (30 Cal.App.4th at p. 355, fn. 19, 35 Cal.Rptr.2d 846 [former fn. 18 per mod.   Dec. 22, 1994].)

25.   The FBI study postdates Barney.   It is not mentioned in Wallace, which was published in March 1993.

26.   In praising the credentials and reputation of Dr. Lewontin, the Barney court referred to appraisals of Lewontin given by, inter alia, Dr. Lander, which were set forth in U.S. v. Yee (N.D.Ohio 1991) 134 F.R.D. 161, 181.   Significantly, on the same page of Yee, Lander received equal praise from Drs. Daiger and Conneally, both of whom testified for the prosecution in this case.

27.   Although, as explained in footnote 18, ante, our limited de novo review under Kelly permits consideration of materials which are outside the record, we acknowledge that Barney and Soto are the only other cases of which we are aware that have considered materials published after entry of the judgment.

28.   Most recently, in an opinion which does not cite Soto, People v. Venegas, supra, 31 Cal.App.4th 234, 36 Cal.Rptr.2d 856, assumed that the methodology suggested by the NRC to account for the possibility of substructuring was generally accepted in the scientific community.  (Id. at p. 249, and fn. 12, 36 Cal.Rptr.2d 856.)  Venegas then rejected an RFLP analysis conducted by the FBI because “the FBI in fact only partially performed its calculations in accordance with NRC recommendations.”  (Id. at p. 250, 36 Cal.Rptr.2d 856.)We express no opinion on whether consensus under Kelly ever existed with respect to the NRC recommendations.   In any event, the FBI report and the Nature article, on which Soto and this court rely, fully support the admissibility of DNA evidence in this case.

FOOTNOTE.   See footnote *, ante.

MASTERSON, Associate Justice.

SPENCER, P.J., and MIRIAM A. VOGEL, J., concur.