PEOPLE v. SOTO (1994)

OPINION

Frank Lee Soto appeals his conviction for attempted rape ¹ of an elderly woman who suffered a severe and totally debilitating stroke after the attack.   The only evidence of the crime was the forensic analysis of the deoxyribonucleic acid (DNA) composition of a semen stain found on her bedspread which matched that of Soto's blood along with statements the victim made to others on the day of the attack.   Because of the stroke, she was unable to testify at the trial.

Soto contests the admission of forensic testimony and opinion regarding the DNA match and attacks the evidence and argument presented at the Kelly ² hearing, which the trial court found established the preliminary foundation for admission of this evidence.   Specifically, he contends the “product rule”—a mathematical formula employed in extrapolating the likelihood of a random DNA match ³ —has not been sufficiently accepted in the relevant scientific community to meet the Kelly requirements.   He also argues the court failed to properly instruct the jury as to the corroboration of the DNA evidence necessary to reach a guilty verdict, and erroneously denied his motion for acquittal at the end of the prosecution case based on this same argument.   In addition, he contends the victim's statements were erroneously admitted hearsay;  and without these hearsay statements, there was insufficient corroboration of the DNA evidence to sustain the conviction.   We disagree and affirm.

FACTS

On November 17, 1989, Sally S., a 78–year–old widow, treated her neighbors, Leroy and Alma B., to lunch in celebration of their anniversary.   They returned to their respective mobilehomes in the afternoon, where Leroy remained until a few minutes after 5 p.m.   At that time, he heard a scream coming from the direction of Sally's trailer and ran over to see what was the matter.   He found the front door closed and could not see any lights on.   Walking around the place, he saw only Sally's car parked in the driveway and heard nothing but silence from inside the trailer.   Leroy looked down the driveway to Soto's trailer, the next closest mobilehome, but saw no one.   Leroy returned home.

He walked into his kitchen and got a drink of water and saw Sally in her kitchen through his kitchen window.   At the same time, his phone rang;  it was Sally calling from her kitchen phone.   All she said was, “I've been raped.”   The neighbors dropped everything and went to her aid.

Sally was very upset, nervous and frightened.   She told them she had washed and cleaned herself before they arrived.   She explained she had been raped by a man who knocked on her back door.   Thinking she recognized the voice,⁴ she opened the door to a man who thrust a knife at her throat.   She screamed;  he threatened to kill her if she screamed again.   A stocking mask covered his face so she could not see his features.   He told her not to touch her “medic-alert” button, a service Sally had recently acquired.   He then pushed her into the bedroom and “raped her.”

Police Officer Dennis Gabrielli arrived a short time later.   Sally was still quite upset, although not crying.   He asked her what had happened.   She told him she had been raped.   She said she answered a knock on her door, thinking she recognized the voice, but was unable to hear what the voice was saying.   She thought it was her neighbor, Soto, because she had talked to him earlier about doing her lawn work.   They discussed what she wanted done on her lawn, and he left around 4:30 p.m.   When she heard the knock on the door, followed by a muffled voice, she assumed he had returned.   But when she opened the door, a man masked with pantyhose pushed his way inside and waved a knife at her face.   He took her into the bedroom where he had intercourse with her.   She was afraid he would kill her, and kept her eyes closed after he opened his pants, exposing his penis.   She begged him not to hurt her, but he slightly penetrated her and ejaculated a few moments later.   He ordered her to lie on the floor.   After about five minutes, not hearing anything, she got up, washed herself and went into the kitchen.   The backdoor was closed, which she then locked.   She pushed her medic-alert button and followed that with the telephone call to her neighbors.

Sally told Gabrielli she could not identify the rapist because of the mask.   She described her assailant as about 5 feet 9 inches tall and weighing 170 pounds.   She thought he had light or blonde hair and an olive complexion.   Soto is 5 feet 10 inches tall and weighs 183 pounds with an olive complexion but with black hair.

The police seized a comforter from Sally's bedroom after they exposed it to a black light and found fluorescent areas, indicating the presence of semen.   A blood sample was obtained from Soto;  its DNA and that of the semen found on the comforter matched.⁵

Sally appeared at trial in a wheelchair accompanied by her daughter, Violet Richards, who attempted to speak for her mother.   Sally had suffered a severe stroke in October 1990 which left her barely able to talk and unable to discuss “that day.”   The court found her incompetent to testify as a witness.⁶  However, her statements about the rape made to her daughter, the neighbors, the doctor and Gabrielli immediately after the event were admitted as spontaneous statements or excited utterances.

DISCUSSION

IAdmissibility of DNA Evidence

Soto argues, as he did at trial, that forensic evidence and opinion matching DNA from his blood with that extracted from the semen stain on the bedspread were erroneously admitted.   He focuses his attack not on the analysis or comparison of his DNA to that found on the bedspread, but on a factor used in the second part of the process:  the frequency determination.   Once analysis and comparison results in a “match,” the scientist then compares the DNA analysis and description with all other available DNA descriptions.   Using a principle derived from actually comparing all known DNA descriptions, the scientist can extrapolate the estimated probability of a chance match between DNA found at the crime scene and that extracted from the suspect's blood.   Soto contends the mathematical probability calculation of the prosecution's experts is disputed within the scientific community, and therefore, the whole subject of the DNA typing should be excluded from the courtroom.

To understand why the frequency determination has any bearing on admission of the analysis and comparison, a brief description of the process known as restriction fragment length polymorphism (RFLP) is necessary.   As presented by Robert Keister, the criminalist at the Orange County Sheriff's Department (OCSD) laboratory and founder of its genetic comparison division, the process can be described relatively simply.⁷  From a body fluid sample, the laboratory isolates and extracts DNA, a long molecule containing four kinds of nitrogenous bases which, when paired together in sequences, make up the 46 chromosomes contained in each cell's nucleus in the human body.   Keister's laboratory looks at four different chromosomes along the DNA chain of each sample and stops at four different locations (“loci”) along those four chromosomes, pulling out a total of eight segments.   The size or length of these “variable number of repeating patterns” (VNTRs) is different from any other individual's.   By comparing four different segments—or alleles ⁸ ]]—from four different chromosomes drawn from one person, the scientist can produce a “description” of that individual—in terms of his or her VNTR size—which is unique.  (See also Schefter, DNA Fingerprints on Trial, Popular Science (Nov. 1994) pp. 62–63;  Omura, Kelly–Frye Analysis:  DNA Evidence on Trial, (1990–1991) 18 Western St.U.L.Rev. 331, 337–340.)

Each allele—from both the person being tested and the crime scene sample—is placed on a bed of gel and an electric current applied, causing the alleles to move down the gel at a speed and distance relative to its VNTR size.   The DNA, which is negatively charged, moves toward the end of the bed which has been positively charged.   Those “smallest” fragments—i.e., VNTRs of shortest length—move the fastest and the farthest, leaving the “larger” fragments behind them in distances relative to their size.   The gel is then covered with a nylon membrane to which the allele attaches.   Radioactive probes are introduced to the membranes, and the probes bond to their complementary bases on the DNA alleles.   The membrane is then “photographed” with X-rays, and the radioactive probes leave an impression of unique bands on the X-ray film, called an autoradiograph (“autorad”).   The technician then “reads” the autorads, visually matching the two sets of bands reflected on the film.   To be considered a match, all four probes must visually match at all bands with the sample's four probes.

The same process is repeated by computer, which performs its own comparison through precision measurement of each band, its location and distance on the “ladder” made in the lane of gel and reflected in the autorads, within a “window” of measurement accuracy of 3.4 percent (i.e., plus or minus 1.7 percent).   This double comparison—once by technician and once by computer—is completed on all four alleles.   For a final conclusion that the suspect's sample is the same as the crime scene sample, all four autorads must visually match and be confirmed by computer measurements.

What exactly does such a match mean?   With the exception of identical twins who share identical DNA, no two persons have the same genetic code.   (See People v. Pizarro (1992) 10 Cal.App.4th 57, 68, 12 Cal.Rptr.2d 436.)   But in this process, the entire genetic strand is not analyzed;  only four or five points along the double helix are extracted and compared.   Therefore, the geneticist must extrapolate the probability of a sheer random match of the four points actually compared.⁹

Probability calculations such as this are rendered daily in both experimental and theoretical fields of science.  “The business of science is to make this complicated world seem as simple as possible, simple enough for our mental grasp, and in performing this task it finds statistics indispensable.   Astronomers, economists, physicists, physiologists, psychologists—scientific workers of every discipline—all rely on the same basic principles of probability to test the validity of their hypotheses․”  (Diamond, The World of Probability:  Statistics in Science (1964) p. 177.)

To estimate the probability of sheer coincidence resulting in a match between two DNA samples, human population geneticists employ a frequency determination formula based on DNA randomly selected throughout the country which has already been analyzed and measured.   There are basically two separate methods scientists use to calculate frequency probability:  the “fixed bin” method ¹⁰ used by the Federal Bureau of Investigation (FBI) and the OCSD lab, and the “floating bin” method employed by the two private companies performing RFLP.   Under the fixed bin method, a factor of two is employed in the calculation drawn from a theory called the “Hardy–Weinberg equilibrium.” ¹¹  Using this method and drawing from the Orange County database, the frequency with which one could expect to see the same four points of DNA would be once in 189 million Hispanics or once in 38 million Caucasians.   However, if the floating bin method is used, the probability is one in 6.7 billion persons.¹²  And if the database is expanded to include the FBI's nationwide DNA database, the frequency probability escalates to one in 2.3 billion Caucasians, or one in 55 million Southwest Hispanics, even using the more conservative, fixed bin method.¹³

Soto contends application of the product rule—the factor of two used in the frequency calculation—is inaccurate because it fails to respond to the possibility of “substructuring.” ¹⁴  If population substructuring exists and affects VNTR size, then the different loci are not truly independent events and Hardy–Weinberg equilibrium is not met.   Application of the product rule—the factor of two—in the frequency calculation, Soto maintains, is therefore disputed within the scientific community because of the possibility of ethnic, demographic or cultural substructuring.   This attack, as presented by his experts, was premised on a single theoretical paper by two nontestifying scientists, Drs. Daniel Hartl and Richard Lewontin.

In the Kelly hearing held outside the jury's presence, the prosecution presented expert testimony from four well-respected human population geneticists:  Drs. Ranajit Chakraborty, Bruce Kovacs, David Goldman and Kenneth Kidd.   Each testified to the accuracy of the product rule in frequency determinations involving human populations, and the validity of the work, both analytical and mathematical, performed by the OCSD lab.   They also uniformly attacked the scientific methodology as well as the conclusions of Hartl and Lewontin.   The defense called Drs. Laurence Mueller, William Shields and Seymour Geisser, who proposed there may be inaccuracy in using the factor of two the prosecution experts employed in determining frequency probability.   Essentially, they feared application of the product rule was inaccurate because of the possibility of human population substructuring, and substructuring may be represented in an unknown way in each allele's size.   They also proposed the product rule was only appropriate when two assumptions are met:  (1) independence of bands inherited from each parent;  and (2) independence between genes at different loci.   Because the OCSD database failed to break its ethnic groups into subgroups—for instance, regional subgroups within the Hispanic bin—they felt there was no assurance both assumptions were met here.¹⁵  Moreover, the defense experts suggested a more accurate factor would be one divided by the database.¹⁶

At the preliminary hearing, the magistrate admitted the expert testimony after finding the analysis, comparison and frequency determination met the requirements of Kelly.   After the preliminary hearing, but before the trial in this case, People v. Axell (1991) 235 Cal.App.3d 836, 1 Cal.Rptr.2d 411 was decided.   It held that both RFLP comparison and the frequency determinations using the product rule met the Kelly requirements.   At Soto's trial, the court conducted a full Kelly hearing and found the prosecution met its burden of establishing the prerequisites for admitting the evidence.   Relying on Axell, the trial court permitted the defense to present evidence indicating a change in the scientific community concerning acceptance of the product rule since publication of that opinion.¹⁷  The significant event, of course, was publication of the Hartl–Lewontin article criticizing the product rule.

After hearing the testimony of the experts from both the prosecution and defense, the trial court found “there is disagreement within the relevant scientific communities, but there has always been that disagreement.   The very earliest trials, the transcripts, the papers ․ have not shied away from the fact that the use particularly of the product rule has been questioned․  I do not believe that the defense has established, and I do consider it their burden after the Axell case[ ] that the defense has established that there has been a shift in general acceptance in the relevant scientific communities.  [¶] ․ [T]he experts in the field are looking, seeking and endeavoring to have a meeting of the minds on better systems, on more totally reliable systems, on a type of system where an expert without qualification can get on that stand and say, ‘I know it is defendant X.’   That would be a scientific aim․  [B]ut I don't think that in itself—that change may be coming, that better systems may be found—that some questions and doubts may be eliminated in the minds of the experts is a bar to the admissibility.   [¶] So on that basis the court believes that there has not been the change or shift in scientific general acceptance in the relevant communities since the Axell opinion․”

In short, the trial court noted the very nature of science encompasses constant and continuous refinement, improvement and clarification because “no scientific theory, regardless of how well it has been tested, can be considered infallible․”  (Academic American Encyclopedia (1993) Modern Views of Science, p. 1.)   However, based on all the evidence presented in this case, the trial court was satisfied the scientific community's general opinion supported the approach and methodology expressed and followed by the prosecution experts.

After judgment in this case, several events relevant to the issue have occurred.   First, the National Research Council (NRC) studied the two major positions and proposed a compromise formulation for DNA probability calculations, termed the “ceiling method.” ¹⁸  Second, People v. Barney (1992) 8 Cal.App.4th 798, 10 Cal.Rptr.2d 731 was published which referred to the various papers, the resulting NRC report and its compromise formulation and noted that a “raging debate” existed within the scientific community on the narrow issue of the product rule's application.   Following Axell's preliminary determination that such probability calculations must meet Kelly requirements as much as the actual technological advance (id. at p. 817, 10 Cal.Rptr.2d 731) but finding the Axell court did not have the benefit of the Hartl–Lewontin paper, the Barney court opined the average juror could not qualitatively weigh the differing viewpoints on the product rule issue and come to any meaningful resolution.   This, it felt, was the purpose of the Kelly rule:  to eliminate such quandaries from a jury's responsibility.   In the face of such a conundrum, the Barney court concluded the average juror would merely eliminate the weighing process altogether and reject the probability assessment, resulting in the DNA comparison “assum[ing] a posture of mystic infallibility in the eyes of a jury․”  (Id. at p. 818, 10 Cal.Rptr.2d 731, internal quotation marks omitted.)

The Barney court decided that the mere existence of debate renders the whole subject inadmissible under Kelly,¹⁹ and distinguished the Axell opinion on the basis that the Hartl–Lewontin article had not yet been published.  (Id. at pp. 820–821, 10 Cal.Rptr.2d 731.)   As an afterthought, the Barney court suggested future DNA typing employ the compromise probability formula espoused by the NRC:  the ceiling method.   The report proposed “ ‘a ceiling frequency’ approach, in which DNA samples from 15 to 20 homogeneous populations will be analyzed for allele frequencies․  [E]ach allele will [then] be assigned the highest frequency that appears in the tested populations, or 5 percent, whichever is greater.   These frequencies will then be multiplied together using the product rule․”  (Id. at p. 822, 10 Cal.Rptr.2d 731, internal quotation marks omitted.)   Essentially, the ceiling method is a compromise between the two main scientific approaches, resulting in a more conservative probability estimate than the product rule calculation.   It was designed to be “unabashedly conservative.   It gave the benefit of every conceivable doubt to the defendant, so that it could withstand attacks from the most stubborn and creative attorneys.   Some of the statistical power was sacrificed to neutralize all possible worries about population substructure.”  (Lander & Budowle, supra, p. 736.)   But it, at least, employed a probability calculation.  (See Minnesota v. Bloom (1994) 516 N.W.2d 159, 162.)

 The trial court below followed the Axell approach, which we hold is proper.   Before admission of DNA typing, the process must meet the Kelly requirements.  (Cf. People v. Leahy, supra, 8 Cal.4th 587, 591, 34 Cal.Rptr.2d 663, 882 P.2d 321 [Kelly requirements still necessary for admission of new scientific evidence.].)   We disagree with the Attorney General who contends frequency determination is only a statistical probability calculation, and therefore requires compliance only with the standard of People v. Collins (1968) 68 Cal.2d 319, 66 Cal.Rptr. 497, 438 P.2d 33.²⁰  Collins preceded Kelly by several years and involved a statistical probability of the Collinses' guilt, not a calculation as part of a scientific analysis or procedure.  Kelly, on the other hand, specifically applies to the “admissibility of expert testimony based upon the application of a new scientific technique․”  (Kelly, supra, 17 Cal.3d at p. 30, 130 Cal.Rptr. 144, 549 P.2d 1240.)

Although the frequency determination is clearly a probability estimate, it is also an essential element of the DNA RFLP technique.   The calculation indicates the significance of the match made by RFLP technique.  (See Bloom, supra, 516 N.W.2d at p. 164 [“[T]he issue ․ is not the admissibility of DNA evidence but the form that the presentation of the evidence takes.”].)   It is not a statistical probability of the defendant's guilt.  (Id., at p. 171.)   Thus, it must meet the prerequisites of Kelly, as part and parcel of the RFLP testimony.  (People v. Wallace, supra, 14 Cal.App.4th at p. 659, 17 Cal.Rptr.2d 721;  Barney, supra, 8 Cal.App.4th at pp. 817–818, 10 Cal.Rptr.2d 731;  Axell, supra, 235 Cal.App.3d at pp. 866–867, 1 Cal.Rptr.2d 411;  see Pizarro, supra, 10 Cal.App.4th at p. 95, 12 Cal.Rptr.2d 436.)

 Having stated that, we now review the lower court's application of Kelly.   Proponents of scientific testimony must show three things:  “(1) the technique or method is sufficiently established to have gained general acceptance in its field;  (2) testimony with respect to the technique and its application is offered by a properly qualified expert;  and (3) correct scientific procedures have been used in the particular case.”  (People v. Morris (1991) 53 Cal.3d 152, 206, 279 Cal.Rptr. 720, 807 P.2d 949 [admission of electrophoresis evidence was proper even though prosecution failed to meet burden in earlier case];  Kelly, supra, 17 Cal.3d at p. 30, 130 Cal.Rptr. 144, 549 P.2d 1240;  see also People v. Leahy, supra, 8 Cal.4th 587, 591, 601, 34 Cal.Rptr.2d 663, 882 P.2d 321 [reviewing the Kelly foundational requirements, but not addressing their application to DNA cases].)   Recently, the “general acceptance” element was further clarified as “a consensus drawn from a typical cross-section of the relevant, qualified scientific community.”  (Leahy, supra, 8 Cal.4th at p. 612, 34 Cal.Rptr.2d 663, 882 P.2d 321.)   However, in that evaluation, the trial court must qualitatively weigh the respective expert testimony, not just look at the numbers of experts on each side of the question.  (Id. at p. 612, 34 Cal.Rptr.2d 663, 882 P.2d 321.)

 In this case, all three requirements were met as reflected in the trial court's ruling.   But Soto interprets the experts' discussion as to the appropriate probability factor to mean the technique has not gained general acceptance in its field.   The trial court did not agree with him, and neither do we.

 To begin with, Drs. Mueller, Geisser and Shields are not human population geneticists, the “relevant, qualified scientific community” for this subject:  Mueller is a professor of ecology whose genetic research was limited to fruit flies;  Dr. Geisser is a biostatistician whose work was limited to mathematical use of statistics;  and Dr. Shields is an environmental science professor whose genetic work principally dealt with nonhuman population concerns.   Drs. Chakraborty and Kidd testified compellingly that the Hartl–Lewontin approach might have a bearing on nonhuman population concerns, but the differences between human genetics and that of lower life forms distinguished those concerns from human RFLP comparisons.   Moreover, Mueller and Geisser both testified their concerns were premised on the possibility of substructuring;  neither professor had “hard data” establishing or refuting that possibility.   In other words, their criticism was based on a potential which Chakraborty and Kidd now had data to refute.   And since the trial in this case, the FBI published its exhaustive, five-volume study of worldwide VNTR data that rebuts the Hartl–Lewontin assumption that population subgroups affect DNA probability estimates to a defendant's disadvantage.²¹

The study concludes, based on empirical evidence, “(1) that there are sufficient population data available to determine whether or not forensically significant differences might occur when using different population data bases [sic ];  (2) that subdivision, either by ethnic group or by U.S. geographic region, within a major population group does not substantially affect forensic estimates of the likelihood of occurrence of a DNA profile;  (3) that estimates of the likelihood of occurrence of a DNA profile using major population group databases (e.g., Caucasian, Black, and Hispanic) provide a greater range of frequencies than would estimates for subgroups of a major population category;  therefore, the estimate of the likelihood of occurrence of a DNA profile derived by the current practice of employing the multiplication rule and using general population databases for allele frequencies is reliable, valid, and meaningful, without forensically significant consequences;  and (4) that the data do not support the need for alternate procedures, such as the ceiling principle approach (NRC Report 1992), for deriving statistical estimates of DNA profile frequencies (Budowle et al. 1993a and 1993b, submitted).”  (U.S. Dept. Justice, FBI Rep., VNTR Population Data:  A Worldwide Study, vol. IA (1993) p. 2.)

 Soto submits the mere existence of “two sides” in the scientific discussion means the whole subject must be excluded.   We cannot agree;  if that were literally true, no scientific evidence could ever be admitted.   Inherent in the scientific method is “testing and confirmation of [ ] hypotheses ․” (Webster's Third New International Dictionary (1986) p. 2033), a never-ending process.²²  As Albert Einstein said, “One reason why mathematics enjoys special esteem, above all other sciences, is that its laws are absolutely certain and indisputable, while those of all other sciences are to some extent debatable․”  (King, The Art of Mathematics (1992) p. 60.)   If the Kelly requirements were met only if there were no debate on a subject, even Copernicus's theory of a sun-centered solar system could not be mentioned in a court of law.   The flat earth society would carry the day.   Indeed, no scientific advance has yet been developed that cannot be questioned or debated.   For this reason, evidentiary rules do not require absolute certainty or unanimity (United States v. Bonds (6th Cir.1993) 12 F.3d 540, 565);  Kelly only requires that the particular method or technique is “generally accepted by a typical cross-section of the relevant scientific community․”  (Leahy, supra, 8 Cal.4th at p. 612, 34 Cal.Rptr.2d 663, 882 P.2d 321.)

Electrophoresis blood typing is an appropriate analogy.   In Morris, the Supreme Court noted the electrophoresis technique for blood typing—which it had earlier rejected as not sufficiently accepted within the scientific community, but which it now found had received the acceptance of the majority—still had an opponent and critic.   The critic, however, had modified his stance to criticize the analysts themselves;  he now advocated a more precise and stringent method of policing the analysts, rather than attacking the process of electrophoresis itself.   The mere fact a critic existed did not render the subject matter inadmissible.  (Morris, supra, 53 Cal.3d at pp. 206–207, 279 Cal.Rptr. 720, 807 P.2d 949.)

The same rule applies here.   Mueller did not attack the process of RFLP identification nor did he object to the general approach of frequency determination in conjunction with that RFLP technique.   His complaint concerned the factor used in the frequency calculation, not the formula for the calculation itself.   Moreover, the prosecution showed the evidentiary foundation for his concerns had been empirically refuted since the debut of the Hartl–Lewontin article.   That refutation has only been bolstered with time.   (E.g., the FBI rep.)

Most importantly, the scientists themselves now proclaim, “the DNA fingerprinting wars are over.”  (Lander & Budowle, supra, p. 735.)   As occurred in the case of electrophoresis typing, two famous adversaries to the admission of DNA evidence, Eric Lander and Daniel Hartl recently shifted their position on the issue, accepting the frequency determinations based on the ceiling method along with the product rule formulation.  (Lander & Budowle, supra, p. 736;  Bloom, supra, 516 N.W.2d at p. 160, fn. 2.)

Various jurisdictions have dealt with the issue of DNA admissibility in a number of ways, permitting its admission in almost every case.²³  (See Bonds, supra, 12 F.3d at p. 565, fn. 20.)   Unquestionably, California courts have accepted the actual procedure of DNA comparison by RFLP as having passed Kelly requirements.  (E.g., Axell, supra, 235 Cal.App.3d at p. 863, 1 Cal.Rptr.2d 411;  Barney, supra, 8 Cal.App.4th at pp. 810–811, 10 Cal.Rptr.2d 731;  Lander & Budowle, supra, p. 736.)   Likewise, the Minnesota Supreme Court concluded the RFLP procedure had general acceptance within the scientific community, as long as the procedure was conducted “in accordance with appropriate laboratory standards and controls․”  (Bloom, supra, 516 N.W.2d at p. 164.)   The undisputed testimony here was the OCSD comparison was accurate and properly performed.

Federal courts, no longer restricted to the rule of general acceptance within the scientific community required by Frye v. United States, supra, 293 F. 1013 (see Daubert v. Merrell Dow Pharmaceuticals, Inc., supra, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469), have followed suit by admitting RFLP comparisons as reliable and relevant evidence in criminal trials.  (E.g., United States v. Chischilly (9th Cir.1994) 30 F.3d 1144, 1152;  Bonds, supra, 12 F.3d at pp. 560–561 [noting that even under the Frye standard, RFLP DNA profiling had reached general acceptance in the scientific community].)   The sole remaining issue before the courts, it seems, is the expert testimony concerning the significance of this evidence.  (Bloom, supra, 516 N.W.2d at p. 161.)

The testimony before the court in this case clearly showed a consensus within the scientific community on the application of a probability calculation to the RFLP comparison.   The only debate centered on which factor to use in that calculation.   The trial court qualitatively assessed the relative merits of the respective experts based on their various credentials and research fields as well as their rationale and final opinions.   It concluded the experts espousing application of the product rule reflected the “support of the clear majority of the members of the relevant scientific community [,] ․” (cf. Leahy, supra, 8 Cal.4th at p. 612, 34 Cal.Rptr.2d 663, 882 P.2d 321) which, in this case, are human population geneticists.   Although a series of events—the NRC report, various court opinions on the subject, the FBI report, Lander and Hartl's shift—have substantially altered the face of information on the subject, the trial court's decision remains correct today.

The trial court did not have the benefit of the NRC's compromise calculation formula, but its decision to admit both experts' calculations is exactly the approach the most conservative scientists advocated.  (Lander & Budowle, supra, p. 736.) ²⁴  The Axell decision already established the evidence's reliability for Kelly purposes and the defense experts' skepticism was relevant to the jury's consideration of the weight to be accorded to the scientific evidence.   The Barney decision and succeeding scientific information have not significantly changed that, even though Barney ruled the probability calculation insufficiently accepted based on the information available to it:  the NRC report's representation of two theoretical camps and its proposed compromise, the ceiling method.   Since then, however, the FBI's report indicates an “interim” approach is unnecessary:  We now have data showing that population substructuring is not “forensically significant” in estimating the random likelihood of a particular DNA profile.  (FBI rep., vol. IA, p. 2.)

This new data refuting the fear of any effect by population substructuring overcomes the reasons for Hartl and Lewontin's hesitations to use the product rule.   Thus, we can now say with empirical support that “[a]ny question or criticism of the size of the data base or the ratio pertains to the weight of the evidence and not to its admissibility.”  (Axell, supra, 235 Cal.App.3d at p. 868, 1 Cal.Rptr.2d 411.)   Moreover, “the ceiling principle was not intended to be exclusive.   Expert witnesses [are] still free to provide their statistical ‘best estimate’ of genotype frequencies based on the product rule․”  (Lander & Budowle, supra, p. 736.)

Of course, a juror may also take into account the Hartl–Lewontin substructure theory in assessing the weight it should ascribe to DNA evidence.   Mueller and Geisser properly testified to their probability estimations, allowing the jury to perform its function of determining the testimony's weight.   As the trial court noted in admitting the DNA testimony, Mueller and Geisser's criticism was limited to suggestions for improving the technique and did not reject it altogether.   Such rejection would be difficult to comprehend when the technique exonerates innocent suspects 30 percent of the time, and has even been used to free individuals wrongly convicted before the technique was available.  (Begley et al., Blood, Hair and Heredity, Newsweek (July 11, 1994) p. 24.)

RFLP is indisputably more precise than blood typing.  “The technology itself represents, perhaps the greatest advance in forensic science since the development of ordinary fingerprints in 1892, and is soundly rooted in molecular biology.”  (Lander & Budowle, supra, p. 735.)   Blood typing evidence can, by statute, be conclusive on the issue of paternity in criminal cases (cf. Fam.Code, §§ 7541–7556) and it likewise requires probability calculations in describing the significance of its findings.  (People v. Brown (1985) 40 Cal.3d 512, 528, 230 Cal.Rptr. 834, 726 P.2d 516.)   It is less precise and yet the courts and Legislature now accept it without hesitation.   Because DNA RFLP is so highly reliable and relevant, to “allow a minor academic debate [over what factor is to be used in a calculation re DNA] to snowball to the point that it threatens to undermine the use of [it] in court” ²⁵ is throwing the baby out with the bath water.

II

Corroboration of the DNA Typing

 Soto contends that, even if the forensic evidence was properly admitted, it should be treated like identification techniques which merely place the defendant within a class of possible suspects.   Such techniques have occasionally required some other form of corroboration connecting the specific defendant to the crime scene before the conviction was sustained on appeal or the technique was submitted to the jury.  (See People v. Morris (1988) 199 Cal.App.3d 377, 391, 245 Cal.Rptr. 52 [electrophoresis evidence properly admitted and jury instructed the bloodstain, matching defendant's genetic markings, was insufficient alone for conviction];  People v. Lindsey (1978) 84 Cal.App.3d 851, 866, 149 Cal.Rptr. 47 [blood-typing showed defendant had the rapist's blood type, but other evidence identified him as the rapist as well].)   Soto requested an instruction so informing the jury, but the request was denied.²⁶  Soto's whole complaint about the frequency determinations was that they essentially said a DNA match between two people occurred “once in the universe.”   The scientific testimony failed to group him within a class of possible suspects;  that was exactly what he wanted the experts to say and none did.²⁷  Thus, the proposed instruction was without any evidentiary foundation, and the trial court's ruling was correct.

III

Motion for Acquittal

Soto also contends the denial of his motion for acquittal was prejudicial error.   He made the same argument there that he makes on appeal:  DNA evidence was of such a type that it merely placed him within a class of potential suspects, and thus, such evidence requires corroboration of the identification.   Arguing Sally's spontaneous statements were inadmissible, he asserts there was no corroboration of the DNA evidence.   But the denial of the motion was proper because corroboration of identifying evidence was not required for DNA comparison.  (See Discussion II, infra.)   Even if such corroboration were required, the victim's statements were properly admitted and met that requirement.

IV

Victim's Hearsay Statements

 Soto contends the court erroneously permitted Gabrielli, the neighbors, the attending physician and Richards to testify to statements the victim made that night as spontaneous statements, an exception under Evidence Code section 1240 ²⁸ to the hearsay rule.   Whether a statement satisfies the requirements of the spontaneous declaration exception is “largely a question of fact” to be decided by the trial court;  its decision must be upheld on appeal if supported by substantial evidence.  (People v. Poggi (1988) 45 Cal.3d 306, 318–319, 246 Cal.Rptr. 886, 753 P.2d 1082;  People v. Anthony O. (1992) 5 Cal.App.4th 428, 434, 6 Cal.Rptr.2d 794.)   Any preliminary fact necessary to make that decision need only be proven by a preponderance of the evidence.  (Anthony O., supra, 5 Cal.App.4th at p. 433, 6 Cal.Rptr.2d 794.)

To be admitted as a spontaneous statement under Evidence Code section 1240, the trial court must find “(1) there [is] some occurrence startling enough to produce [ ] nervous excitement and render the utterance spontaneous and unreflecting;  (2) the utterance must have been [made] before there has been time to contrive and misrepresent, ․ and (3) the utterance must relate to the circumstance of the occurrence preceding it.   [Citations.]”  (People v. Trimble (1992) 5 Cal.App.4th 1225, 1233–1234, 7 Cal.Rptr.2d 450.)

“A ‘spontaneous' utterance within the meaning of [Evidence Code] section 1240 is one which is ‘undertaken without deliberation or reflection.’   [Citations.]  ‘[T]he basis for the circumstantial trustworthiness of spontaneous utterances is that in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker's actual impressions and belief.  [¶]  The crucial element in determining whether a declaration is sufficiently reliable to be admissible under this exception to the hearsay rule is thus not the nature of the statement but the mental state of the speaker.   The nature of the utterance—how long it was made after the startling incident and whether the speaker blurted it out, for example—may be important, but solely as an indicator of the mental state of the declarant.’  [Citation.]”  (Trimble, supra, 5 Cal.App.4th at pp. 1234–1235, 7 Cal.Rptr.2d 450.)

In Trimble, the child witness told the murder victim's sister about the attack on her mother two days after it actually occurred.   The child—only two-and-one-half years old—became very upset, practically hysterical, as she recounted what had happened.   Some of the statements were in answer to questions posed by the child's aunt;  but the manner in which the statements were made showed the child was still suffering under the trauma of seeing her mother's death.   Consequently, the evidence sufficiently supported the trial court's admission of the statements as spontaneous utterances.

Likewise here.   All the victim's statements were made within four hours of the attack.   Throughout this period, she was either crying, wringing her hands, covering her face, averting her eyes from whomever was talking to her or talking about how scared, upset and nervous she was.   Even her daughter noted she was appreciably more upset that evening than she had been when her only brother died.   Gabrielli, the neighbors and the attending physician questioned her, but that alone is not sufficient to contradict the inference from this evidence that she was still suffering from the trauma of the incident.   As noted in Trimble, “[n]either lapse of time between the event and the declarations nor the fact that the declarations were elicited by questioning [emphasis added] deprives the statements of spontaneity if it nevertheless appears that they were made under the stress of excitement and while the reflective powers were still in abeyance.  [Original emphasis.]   [Citations.]”  (Trimble, supra, 5 Cal.App.4th at p. 1234, 7 Cal.Rptr.2d 450.)   We cannot say the court's ruling was unfounded.²⁹

The judgment is affirmed.

FOOTNOTES

1.   Soto was originally charged with forcible rape under Penal Code section 261, subdivision (a)(2), and a special allegation under Penal Code section 12022.3, subdivision (a), that the rape was accomplished at knife point.   The jury, however, convicted him of the lesser included offense of attempted rape, and did not find he committed the offense with a knife.

2.   See People v. Kelly (1976) 17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 and Frye v. United States (D.C.Cir.1923) 293 F. 1013;  but see Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, ––––, 113 S.Ct. 2786, 2794, 125 L.Ed.2d 469 which discusses the Frye rule and revises its evidentiary restrictions for the federal courts.   Consequently, we refer to the foundational requirement as the Kelly rule in this opinion, which is still the prerequisite for admission of new scientific evidence in California.  (People v. Leahy (1994) 8 Cal.4th 587, 612, 34 Cal.Rptr.2d 663, 882 P.2d 321.)

3.   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.”  (People v. Collins (1968) 68 Cal.2d 319, 325, 66 Cal.Rptr. 497, 438 P.2d 33, italics deleted.)

4.   Sally told Alma she had been talking to their neighbor, Frank Soto, about hiring him to do her lawn work that afternoon.

5.   Although not discussed in the trial, no opinion could be drawn until a third analysis was done.   The first submission was to a private firm, but the analysis was of such poor quality, no opinion could be rendered one way or the other.   The Orange County Sheriff's Department (OCSD) conducted a second comparison, but a procedural defect resulted in rejection of that examination, requiring a third analysis.   This third analysis is the focus of this appeal.   The jury never heard of the first two efforts at a comparison.

6.   Sally's daughter felt the stroke was brought on by the tremendous stress Sally lived with following this attack.   She feared everyone after the rape, and was particularly distrustful of men.   She repeatedly expressed her fear that someone would break into her home;  she refused to even go for walks because someone might follow her home.   The trial court, however, told the jury Sally was unable to testify due to an unrelated medical problem.

7.   The lab excludes any DNA segment that controls development of aspects of the body commonly shared by every human, such as arms, legs, head, brain, etc.   However, there are parts of each person's DNA which are unique to him or her, and these parts are the samples the laboratory isolates.   These parts are sometimes referred to as “junk DNA” as their purpose, if they have a purpose, is unknown;  they appear to be “nonfunctional genetic nonsense.”  (See Sagan, et al., Shadows of Forgotten Ancestors (1992) pp. 82–83.)   These small portions are found when, examining the long molecule, the scientist locates a repeating pattern of the same combination of the four bases, adenine (A), thymine (T), guanine (G) and cytosine (C).   These four bases pair together as A–T and G–C, and then connect together in chains to form a pattern with the only possible combinations being G and C, C and G, T and A, and finally, A and T.   Each of these repeating patterns is known as a VNTR:  “variable number of tandem repeats.”

8.   An allele is a certain length piece of DNA.

9.   “In explicating the mathematics ․ the theory of probability provides us with the mathematical means to predict the future of probabilistic systems with as much precision as possible․  [¶]  First and foremost, the theory of probability clarifies what it is exactly that we mean by the term ‘probability.’   It is defined in hypothetical terms, as the number of times out of a hundred some particular outcome would be realized if a probabilistic system such as a pair of dice was allowed to fall into place randomly an infinite number of times.   Saying that the probability of throwing a pair of sixes is about three out of a hundred, for instance, means that in the infinitely long run, a pair of sixes will come up about three times out of every hundred tosses;  it does not mean that three pairs of sixes will come up each time we toss the dice a hundred times.  [¶]  Clearly, the definition of probability is impossible to apply if it is taken literally.   We cannot actually toss a pair of dice, or test any other probabilistic system, an infinite number of times;  therefore, we can never measure probability as it is theoretically defined.   However, according to the theory of probability, we can measure something very close to the theoretical probability by observing the outcomes of a probabilistic system a very large number of times.   The larger the number of times this is done, the closer measured probability will zero in on some specific value.   This value is—or is very close to—the theoretical probability.”  (Guillen, Bridges to Infinity (1983) pp. 131–132.)

10.   In summary, the fixed bin method uses a database of DNA samples already analyzed and described.   In Orange County, the database was drawn by the Red Cross and generally categorized into four groups:  Hispanic, Caucasian, Asian and Black.   Each allele from Soto's sample was mathematically described based on its size and then compared to every other sample's size in the database.   Each allele—singularly—occurred with a unique frequency among all the alleles measured in the database.   The frequency of each band was then multiplied with its “partner” band's frequency, and then multiplied by two to comply with a principle called the Hardy–Weinberg equilibrium.   The result of this multiplication reflects “the estimate of the frequency of the occurrence of that combination together in the population.”   Of the four alleles—each comprised of a pair of bands—extracted from Soto's sample, the first occurred once in 229 OCSD samples.   The second occurred once in 227 samples, and the third and fourth, respectively, once in 35 and 105 samples.   But the frequency that all eight bands—meaning, all four alleles—would match with another person's eight bands become once in 38 million Caucasians or once in 189 million Hispanics.

11.   The actual theory espoused by Hardy and Weinberg almost a century ago predicts the probability of any given occurrence.   Here, it predicts a heterozygote pattern at a given locus as “2pq ” where p and q are the respective probabilities of each of the 2 bands;  it likewise predicts the probability of a true homozygote pattern at a given locus as the square of that probability:  “p -squared” or “q -squared.”   However, since true homozygotes are rare, all the laboratories use a conservative 2 p (treating q as 1) to calculate the probability of an apparent single-banded pattern.   The resulting equation describing Hardy–Weinberg equilibrium is:  p -squared plus 2pq plus q -squared is equal to 1.  (See People v. Castro (1989) 144 Misc.2d 956, 545 N.Y.S.2d 985, 992–993.)

12.   Soto's sample was actually compared to every DNA sample in the Orange County database, which were then compared to each other, resulting in 600,000 comparisons.   Soto's DNA sample was, as expected, unique:  no match occurred with any sample.   Keister had to broaden the “window” of measurement error to 37 percent before any sample fell into even a proximity with Soto's.

13.   We take judicial notice under Evidence Code section 452, subdivision (h) that, as of 1990, the total population of the United States of America was 251.4 million which included 19.4 million Hispanics.  (1993 Walden Publishing Ltd., Country Reports.)   As of 1993, the world's population is estimated at 5.6 billion, and the population of California was set in 1991 at 30.4 million.

14.   Substructuring is the term attributed to a possible frequency variation of VNTR size resulting from lack of intermarriage between ethnic groups.   For example, it is theorized Appalachian residents might have a higher frequency of allele size similarities with each other than they have with New York Caucasian residents simply because their ancestors have intermarried from a rather closed genetic pool.

15.   The experts' testimony is summarized as follows:Dr. Chakraborty, the recognized authority in human population genetics involving RFLP (called a “major league player” in the scientific field by several of the other experts), reviewed the laboratory work of each of the labs performing RFLP and concluded the OCSD lab was the most careful in terms of validating its database.   He also opined the application of the product rule was proper in the OCSD analyses of probability estimates;  each of the necessary assumptions was met before the lab decided to apply the factor of 2.   Dr. Chakraborty also developed a series of tests to review and examine the database, the calculations and extrapolations, particularly after the release of criticisms by Drs. Hartl and Lewontin, who, along with Mueller and Eric Lander, questioned using the product rule because of fears that population substructuring might negatively affect the accuracy of such applications.   Chakraborty's tests produced “hard data” proving there was no substructuring;  neither Lewontin's nor Lander's article presented any new data to support their fears of possible substructuring.   Instead, they relied on rather old results, later criticized by Chakraborty and Kidd.Chakraborty applied his tests to the OCSD database and calculations, concluding the methodology and material was accurate.   Actually, he concluded the lab's work was overly “conservative,” reaching a probability of a random match more frequently than he necessarily would.   His findings, based on empirical data, showed racial or ethnic groupings completely insignificant.Dr. Bruce Kovacs testified he examined the autorads in this case, concluding the work and conclusion were excellent.   He was aware of the criticism espoused by Hartl and Lewontin, but they failed to present evidence “linkage” existed;  additionally, any effect which substructuring might have on the results was substantially reduced by the use of “binning” the allele measurements so as to be insignificant.   Dr. David Goldman testified his lab at the National Institute of Health employs the product rule in its genetic research into neuropsychiatric disorders, particularly alcoholism.   He is aware of the debate among some scientists over whether the product rule should be used;  it centers on whether two assumptions are met before the rule is applied in frequency determinations.   He is aware of the research indicating there is independence of alleles, i.e., that the necessary assumptions are met.   He is also aware of the OCSD database and opines it is sufficiently large to properly apply the product rule in its frequency determinations.Dr. Kenneth Kidd, director of the Yale University DNA research lab and an executive of the Human Gene Mapping project, acknowledged the debate regarding probability estimates.   His opinion is that any greater precision is impossible;  the product rule can be applied because the frequency determination derived from it is still as accurate as any determination can possibly be.   Although the greater the database the greater the certainty of the estimate, any difference in estimates over one in a million becomes pragmatically meaningless.   Finally, empirical data proves there is no substructuring;  the larger the database, the more uniform the distribution of gene size becomes.  (See FBI rep., supra, p. 2.)   Hartl and Lewontin's work was primarily a hypothesis with no empirical data to support it.Dr. Seymour Geisser, Director of the School of Statistics at the University of Minnesota, evaluates databases to see if the Hardy–Weinberg equilibrium is present.   He opined there is no proof the Red Cross randomly selected its subjects in Orange County, and random selection is essential in frequency determinations.   Also, a database requires at least 5,000 samples for any accuracy in its extrapolations, and the OCSD lab has only 250.   He opines the factor of 2 is inappropriate;  a more reliable “factor” would be 1 divided by the total number of samples in the database.   Essentially, he asserts no probability extrapolation can be made;  a factor of 1 divided by the database merely means that in the group of persons tested, only one was found with that particular combination of genetic points.Dr. William Shields, professor at the State University of New York, testified random sampling is crucial in any database for purposes of frequency determination.Dr. Laurence Mueller, associate professor at University of California (Irvine) in ecology and evolutionary biology, testified the product rule requires two assumptions be met.   He opined the existence of a population subgroup would mean that the alleles at any given loci are not independent.   He criticized the OCSD database as not subgrouping their ethnic categories;  the Hispanic “bin” should be further divided into regional subgroups.   Because a population subgroup proves the necessary assumptions for applying the product rule are not met, a different mathematical formula should be applied instead of the product rule.   He suggested the factor of one divided by the total number of samples in the database is a reliable factor.

16.   Neither defense expert actually calculated what that frequency determination would reveal in Soto's case;  appellate counsel concludes it would mean the chance of a match was one in 250.   This is incorrect, even using the defense experts' formula.   Such a statement would only be true for a single loci match, not a match of all four loci.   It is therefore unclear what the frequency determination would be in this case using their suggested factor.

17.  Soto disputes a full Kelly hearing was afforded to him, arguing the trial court limited the hearing to just information attacking the acceptance of the probability calculation in the scientific community after the Axell decision. But both parties stipulated to the admission at the Kelly hearing of all testimony from the preliminary hearing which preceded the Axell opinion, and the trial court accepted numerous reports, transcripts of experts' testimony and documents submitted by both parties on all issues relevant to the general matter of DNA typing. The trial court applied the Axell holding and found the defense failed to meet its burden of showing the calculation had fallen from the scientific community's respect since that decision; but the Kelly hearing included all relevant evidence, not just information on the issue that had arisen since the Axell decision.

18.   As paraphrased by one of the authors of the report, Dr. Eric Lander, the ceiling method rested on the assumption that “[r]egardless of the population substructure, the multiplication rule requires only a slight modification to yield a strict upper bound on the frequency of any genotype G:  for each allele in G, the allele frequency should be taken to be the maximum over the component subpopulations.   In effect, the approach makes the worst-case assumption that the population may contain individuals who, for example, carry a common Caucasian allele at a locus on chromosome 2 and a common Black allele at a locus on chromosome 17.   By assuming the worst, one is guaranteed to be conservative.   Because it used the maximum frequency in any subpopulation, the method was dubbed the ‘ceiling principle.’  [¶]  ․ Even in advance of detailed data about ethnic group, the committee felt that same principle could be applied to the available racial data-bases (Caucasian, Black, Hispanic, Asian), although it recommended a 10% floor on allele frequencies to reflect the greater uncertainty about subpopulation variation:  this slightly amended form was called the ‘interim ceiling principle’.  [sic ]  (The choices of 5% and 10% were based on the quantitative effect of genetic drift on the match odds—that is, on the reciprocal of the allele frequency—although none of this reasoning survived into the text of the final report.)”  (Lander & Budowle, DNA Fingerprinting Dispute Laid to Rest, Nature (Oct. 27, 1994) p. 736.)

19.   The Barney court repeated its holding in People v. Wallace (1993) 14 Cal.App.4th 651, 17 Cal.Rptr.2d 721 without any further discussion of the issue.   It should be noted that although the court expressed its fear such evidence would “assume a posture of mystic infallibility,” it held in both Barney and Wallace that the DNA evidence was erroneously admitted but harmless in light of circumstantial evidence connecting the defendants to the crime.  (Barney, supra, 8 Cal.App.4th at p. 826, 10 Cal.Rptr.2d 731;  Wallace, supra, 14 Cal.App.4th at p. 662, 17 Cal.Rptr.2d 721.)

20.   Collins reversed a conviction based substantially on evidence of the probability that the Collinses were the two people who robbed the elderly victim.   The probability extrapolation was inherently unreliable because of (1) an inadequate evidentiary foundation and (2) an inadequate proof of statistical independence.  (Collins, supra, 68 Cal.2d at p. 329, 66 Cal.Rptr. 497, 438 P.2d 33.)

21.   We accept and consider all the scientific literature relevant to the issue even though it does not confine our review to the record.   In the limited situation of reviewing scientific matters for purposes of courtroom admission, “[t]his looking beyond the record can help end case-by-case controversy on the subject [citation] and is especially justified by the realization 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, at least until new evidence is presented reflecting a change in the attitude of the scientific community’ (Kelly, supra, 17 Cal.3d at p. 32, 130 Cal.Rptr. 144, 549 P.2d 1240).”  (People v. Reilly (1987) 196 Cal.App.3d 1127, 1134–1135, 242 Cal.Rptr. 496.)

22.   “Today it is recognized that no automatic method exists for creating good scientific theories.   In addition, no scientific theory, regardless of how well it has been tested, can be considered infallible.   Nevertheless, sound ways have been developed to criticize and test such theories and to eliminate bad ones․  [¶]  Many issues remain controversial when considering the nature of science.   All of them concern scientific inquiry in general, irrespective of the scientific subject matter.   Problems also arise directly from the content of specific scientific theories.   Thus theorists in physics are trying to determine whether a new kind of logic, called quantum logic, is required in order to formalize QUANTUM MECHANICS [sic ] while theorists in biology have tried to analyze the concept of species as it is used in population genetics․”  (Academic American Encyclopedia (1993) Modern Views of Science, pp. 1–2.)

23.   Twenty-eight state supreme courts have admitted DNA evidence, some on the basis the ceiling method is used in the calculation, some on the basis that such evidence meets the Frye test, and others based on the trial court's discretionary power to admit relevant and reliable scientific evidence.  (E.g., Bloom, supra, 516 N.W.2d at p. 160;  Perry v. Alabama (1991) 586 So.2d 242;  Prater v. Arkansas (1991) 307 Ark. 180, 820 S.W.2d 429;  Fishback v. Colorado (1993) 851 P.2d 884;  Andrews v. Florida (1988) 533 S.2d 841;  Hawaii v. Montalbo (1992) 73 Haw. 130, 828 P.2d 1274;  Davidson v. Indiana (1991) 580 N.E.2d 238;  Iowa v. Brown (1991) 470 N.W.2d 30;  Kansas v. Smith (1991) 248 Kan. 217, 807 P.2d 144;  Harris v. Kentucky (1992) 846 S.W.2d 678;  Louisiana v. Charles (1993) 617 S.2d 895;  Cobey v. Maryland (1989) 80 Md.App. 31, 559 A.2d 391;  Massachusetts v. Lanigan (1994) 419 Mass. 15, 641 N.E.2d 1342;  Polk v. Mississippi (1992) 612 S.2d 381;  Missouri v. Davis (1991) 814 S.W.2d 593;  New Mexico v. Duran (1994) 881 P.2d 48;  New York v. Wesley (1994) 83 N.Y.2d 417, 611 N.Y.S.2d 97, 633 N.E.2d 451;  North Carolina v. Pennington (1990) 327 N.C. 89, 393 S.E.2d 847;  Ohio v. Pierce (1992) 597 N.E.2d 107;  Oregon v. Herzog (1993) 864 P.2d 1362;  Pennsylvania v. Crews (1994) 536 Pa. 508, 640 A.2d 395;  South Carolina v. Ford (1990) 301 S.C. 485, 392 S.E.2d 781;  South Dakota v. Wimberly (1991) 467 N.W.2d 499;  Bethune v. Texas (1992) 828 S.W.2d 14;  Vermont v. Passino (1994) 640 A.2d 547;  Spencer v. Virginia (1989) 238 Va. 295, 384 S.E.2d 785;  West Virginia v. Woodall (1989) 182 W.Va. 15, 385 S.E.2d 253;  Springfield v. Wyoming (1993) 860 P.2d 435.)   Georgia bifurcated the issue of the probability calculation, remanding the case to the trial court solely on that point but affirming the admission of the DNA comparison.  (Caldwell v. State (1990) 260 Ga. 278, 393 S.E.2d 436.)   Four states, however, have excluded DNA evidence in criminal cases:  Washington (State v. Cauthron (1993) 846 P.2d 502), Arizona (State v. Bible (1993) 175 Ariz. 549, 858 P.2d 1152), Nebraska (State v. Houser (1992) 241 Neb. 525, 490 N.W.2d 168) and New Hampshire (State v. Vandebogart (1992) 136 N.H. 365, 616 A.2d 483).

24.   “The ceiling principle was unabashedly conservative․  [¶]  The [NRC] committee was comfortable with such a lop-sided [sic ] approach, because even these extreme assumptions did not undermine the practical use of DNA fingerprinting.   A four-locus match performed by forensic labs could still provide odds of 6,250,000 [to] 1.   If this were not enough, two additional loci could increase the odds to more than 15,000,000,000 [to] 1.  [¶]  Finally, the ceiling principle was not intended to be exclusive.   Expert witnesses were still free to provide their statistical ‘best estimate’ of genotype frequencies based on the product rule.   But if disagreement over such estimates arose, the ceiling principle provided an approach that all parties had to admit was biased to favor a defendant.   By all rights, this seemingly solomonic solution should have ended the controversy over population genetics.”  (Lander & Budowle, supra, p. 736, emphasis added.)

25.   Lander and Budowle made this observation when coauthoring their recent declaration that “[t]he DNA wars are over.”   Considering they were clearly two of the most vocal advocates of opposing camps on the forensic use of DNA, their mutual declaration that the dispute is resolved in the scientific community carries great weight.  (Lander & Budowle, supra, p. 737.)

26.   The proposed instruction read, “The analysis of the DNA evidence in this case in and of itself does not identify the defendant as the perpetrator in this case.   This evidence, in and of itself, is inadequate in the absence of other corroboration, to identify the defendant as the perpetrator of the offense charged.”

27.   Counsel asserts the experts concluded in their probability calculations the DNA type could have been held by someone else in California or the world.   He submits no authority for this remark.   The experts essentially testified to the contrary (“once in 189 million Hispanics”), assuming the total population of California is 30.4 million, of which we take judicial notice.

28.   Evidence Code section 1240 states, “Evidence of a statement is not made inadmissible by the hearsay rule if the statement:  [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant;  and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.”

29.   We note the fact Sally reported the sexual assault was possibly admissible for a “limited, nonhearsay purpose—namely, simply to establish that such a complaint was made—in order to forestall the trier of fact from inferring erroneously that no complaint was made, and from further concluding, as a result of that mistaken inference, that the victim in fact had not been sexually assaulted.  [Citation.]”  (People v. Brown (1994) 8 Cal.4th 746, 748, 35 Cal.Rptr.2d 407, 883 P.2d 949.)   However, such a nonhearsay purpose is relevant when the victim testifies to the sexual assault;  its relevance is questionable when the victim does not testify.   Because Sally's statements were never admitted as proof of her report—as distinct from the proof of the assault—we decline to address the applicability of such a basis for the statements' admission.  (Compare Brown, supra, 8 Cal.4th at p. 749, fn. 1, 35 Cal.Rptr.2d 407, 883 P.2d 949.)

SILLS, Presiding Justice.

WALLIN and CROSBY, JJ., concur.