Opinion
F077675
06-17-2021
In re KEVIN DUANE GALIK, SR. On Habeas Corpus.
Northern California Innocence Project, Linda Starr and Kelley Fleming, under appointment by the Court of Appeal, for Petitioner. Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Respondent.
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; application for writ of habeas corpus. Kings Super. Ct. No. 14W0099A H.N. Papadakis, Judge. (Retired Judge of the Fresno Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Northern California Innocence Project, Linda Starr and Kelley Fleming, under appointment by the Court of Appeal, for Petitioner.
Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Michael A. Canzoneri and Barton Bowers, Deputy Attorneys General, for Respondent.
LEVY, Acting P.J.
1
INTRODUCTION
In 1997, a jury convicted petitioner Kevin Duane Galik, Sr., of murder and found true that the murder was committed during the commission of or attempted commission of lewd or lascivious acts on a child under the age of 14. Petitioner received a prison sentence of life without the possibility of parole (LWOP).
Petitioner was acquitted on a charge of kidnapping involving a separate alleged victim stemming from an incident unrelated to this murder.
During law enforcement's investigation leading up to this trial, a Department of Justice (DOJ) lab analyzed swabs collected from the victim's genitalia. No semen was detected. As a result, no deoxyribonucleic acid (DNA) testing of the collected material was performed. The jury was not provided with any DNA evidence.
In the present petition, petitioner claims he is innocent. He argues newly discovered DNA from the vaginal and left labia majora swabs entitles him to habeas relief. We disagree. Petitioner has not shown his newly discovered evidence has “such decisive force and value that it would have more likely than not changed the outcome at trial.” (Pen. Code, § 1473, subd. (b)(3)(A).) We deny the petition.
All future statutory references are to the Penal Code unless otherwise noted.
BACKGROUND
We summarize the trial evidence and the postconviction history of this matter.
I. The Trial Evidence.
The following facts are taken primarily from this court's nonpublished opinion in People v. Galik (Apr. 25, 2000, F029543). Additional facts come from the trial record, which the parties have asked us to judicially notice.
A. The disappearance and search for Rene.
On February 25, 1996, Traci Rene Conrad, known as Rene, was 11 years old. Sometime between 1:15 and 1:30 p.m., she asked her father if she could go play at the Galik house with petitioner's minor sons. She left home shortly thereafter.
The other witness, R.K., testified at trial for the defense. He saw Rene walking southbound (away from the Galik residence) likely between 1:15 p.m. and 1:45 p.m., but he was not certain of the time. The parties agree it was about a five-minute walk from Rene's home to the Galik residence. Respondent admits that, in 1996, two witnesses told police they saw Rene walking away from the Galik home on the day she disappeared. A police report details that T.S. (a retired police officer) saw Rene walk towards the Galik home and, about five minutes later, he saw her walk away from the Galik residence. T.S. “knew” Rene but he “did not really see her face good” at that time. He “felt” it was Rene. He did not testify at trial.
By 5:00 p.m. that evening, Rene had not returned home, and her family began to search for her. At approximately 6:45 that evening, her family contacted the police department.
That evening, officers spoke with petitioner's mother at the Galik residence. She indicated that out-of-state relatives were there with her. At approximately 7:30 p.m., petitioner, his two minor sons, and petitioner's girlfriend arrived at the Galik residence. Officer Robert Dewey spoke briefly with petitioner and the others to see if they had seen Rene.
At approximately 10:30 that evening, Officer Dewey and Investigator Pete Moes returned to the Galik house to talk to petitioner and his mother, Mrs. Galik. During the visit, Officer Dewey made a preliminary search of the garage, family room, living room, kitchen and one of the bedrooms. He found nothing of significance in the search. Officer Dewey did not search the backyard of the house at this time.
At approximately 10:30 p.m., Officer John Hoover arrived at the Galik residence. He observed petitioner walking from a fenced-in portion of the west side of the house. Officer Hoover asked petitioner if he had been contacted by police regarding the missing child. At this time, petitioner was perspiring heavily, his pupils were dilated and he appeared very nervous and agitated. Officer Hoover testified that petitioner appeared to be under the influence of a controlled substance.
Petitioner gave Officer Hoover consent to search the Galik residence and the backyard. Officer Hoover conducted a cursory search of the backyard. He did not search or see a kiln in the backyard. Officer Hoover did notice pottery or ceramic molds and asked petitioner what they were. Petitioner explained their use, but did not point out the kiln to the officer. Petitioner lifted the cover of the backyard spa for the officer's inspection. Officer Hoover testified that when he did his search, he assumed the backyard had been previously searched.
As Officer Hoover was leaving the Galik house, he noticed a trailer parked in the driveway with a padlock on the door. Officer Hoover asked petitioner if he could open the trailer to look inside. Petitioner told Officer Hoover he did not have the keys but would try to find them. While petitioner was looking, Officer Hoover continued contacting neighbors along the street.
After speaking with a neighbor for approximately five minutes, Officer Hoover returned to the Galik house and noticed an electrical extension cord leading from the house to the trailer. Officer Hoover asked petitioner again for the keys. Petitioner stated he could not find them and he thought the keys might have been locked inside the trailer as he had been in the trailer earlier that day. Petitioner told Officer Hoover that he and his girlfriend sometimes slept in the trailer. Officer Hoover told petitioner to continue looking for the keys. Officer Hoover left for approximately five minutes to contact another neighbor.
When Officer Hoover returned, petitioner was moving pottery from the west side of the house into the back of a pickup truck parked in front of the residence. Petitioner told Officer Hoover that he thought he might have left the trailer keys at an antique shop earlier in the day and that he would check when he delivered the pottery. At this point, Officer Hoover became suspicious and called Investigator Moes to come to the Galik house. By the time Officer Hoover called Investigator Moes, petitioner had left with his girlfriend.
Officers followed petitioner, and they located him near an antique store unloading pottery from the truck and into a nearby trailer. Petitioner was again asked about the keys to the trailer. Petitioner and his girlfriend went to the door of a residence where they were met by a man and woman. The two entered the trailer and were out of sight. After approximately five minutes, petitioner and his girlfriend reappeared, exited the trailer and got into the truck. The officers followed petitioner back to the Galik residence.
When petitioner continued to be unable to produce the keys for the trailer, the police officers decided to cut off the lock with bolt cutters. When Investigator Bruce Blodgett arrived with bolt cutters, petitioner asked, “Now we're only looking for the little girl, right?” Investigator Blodgett cut off the lock and entered the trailer. Upon entering, he observed some glass pipes, a roach clip, and a mirror on the bed. The items were commonly used in the consumption of controlled substances. Investigator Blodgett moved the bedspread over the items and told petitioner, “Let's just pretend we didn't see that.” Officer Hoover testified there was no evidence Rene was in the trailer. After searching the trailer, Officer Hoover finished contacting residents in the area.
Later when he finished canvassing the neighborhood, at approximately 12:30 a.m., Officer Keith Prewitt contacted petitioner in front of his house. Petitioner told Officer Prewitt he just remembered that around dusk the previous day, petitioner had observed a 1970's model passenger car with three male occupants drive slowly past his house approximately three times. The males appeared to be “cruising” the area.
B. The discovery of Rene's body.
A few days prior to March 21, 1996, Mrs. Galik began smelling something from outside. On March 21, almost four weeks after Rene disappeared, the smell became so strong she could not keep her windows open. Mrs. Galik investigated the smell and noticed ceramic molds and a pan piled on top of the kiln that had not been there at least six months before. She also noticed flies. At approximately 6:30 that evening, Mrs. Galik asked her son, Michael Galik, to check the kiln. After checking the kiln, Michael asked Mrs. Galik what kind of jacket Rene was wearing. When they determined Rene's body was probably in the kiln, Mrs. Galik decided to call the police. Before she called the police, petitioner called her. Mrs. Galik told him what they had found and that they were going to call the police. Petitioner stated he would be home right away or in a little while, but he did not return home that evening.
At trial, petitioner testified he did not return home that night because he was in another town changing a battery and repairing a vacuum leak on a van.
Law enforcement responded. A distinct, foul odor was coming from the area of the kiln. The officers opened the kiln and discovered Rene inside. She was wrapped in a pink and white striped sheet. After the sheet was removed, police discovered a white T-shirt wrapped and tied around Rene's head. The T-shirt was a man's Fruit of the Loom brand and “extra, extra large, size 50/52.” Two strips of cloth were also tied around Rene's head, one around her eyes and one around her neck area.
The strips of cloth appeared to be terry cloth toweling, and one of the strips had a seashell pattern. Three or four one-inch wide strips of duct tape were over Rene's mouth. Underneath the tape was an athletic sock.
Rene's wrists and ankles were bound with nylon pantyhose. Rene's father identified the clothing, jewelry and glasses taken from the body as what Rene was wearing when she left the house.
Dr. Thomas Bennett, a forensic pathologist and expert in sexual abuse of children, reviewed photographs and reports of Rene's autopsy. Rene died of asphyxiation caused by the bindings and gag over her mouth. Rene's genitals had evidence of pre-death, penetrating sexual injuries. Her external genitalia displayed bruising and scraping injuries consistent with a blunt force injury to the area. The opening of Rene's vagina contained fresh tears and abrasions consistent with penetrating sexual injuries. The injuries occurred prior to or around the time of Rene's death and were consistent with trauma suffered from sexual abuse.
As detailed in the SART report, the “right labia majora had a dark red pigment from the pubic mound area to the buttock. Half way down on the right labia majora there is an area of darker pigmentation possibly suggesting a scratch/scrape/abrasion.” Two scratches, possibly from fingernails, were seen on the right labia majora in the proximity of the vaginal opening. An apparent abrasion (a circular area of darker pigment than the surrounding skin) appeared on the left labia majora. Two apparent “fingernail like divots” (described as “moon shaped lacerations”) also appeared on the left labia majora. The SART nurse suggested law enforcement should take impressions of the suspect's fingernails “both individually (finger by finger), and together of both hands.”
Dr. Laura Slaughter, an expert in sexual abuse of children, reviewed the colposcopic examination of Rene. Dr. Slaughter opined there was evidence of blunt force penetrating trauma to Rene's genitalia.
On March 22, 1996, Police Officer Tom Scheeringa conducted a search of petitioner's residence. He discovered a pillowcase in the linen closet which had the same pattern as the sheet that was wrapped around Rene's body. In the laundry room, Officer Scheeringa discovered a towel with the same seashell pattern as the cloth found tied around Rene's eyes. In the laundry room and the hallway outside the laundry room, officers found several pairs of nylon pantyhose. In the northwest corner bedroom of the house, Officer Scheeringa noticed the wallpaper matched the color and pattern of the sheet used to wrap Rene's body. One of the twin beds in the room contained a pair of women's white shorts and a pair of pantyhose. Four pieces of mail addressed to petitioner were found in the bedroom. Two men's T-shirts, Fruit of the Loom brand, extra, extra large, size 50/52 were found in the bedroom.
On March 29, 1996, Investigator Moes returned to the Galik residence. During an inspection of the area around the kiln, Investigator Moes noticed a telephone wire running from the house to the trailer parked in the driveway. A portion of the wire was wrapped with one-inch wide duct tape. This was the same width tape used to gag Rene. A sample of the wire with the duct tape was collected.
C. Petitioner's inconsistent statements to police.
At trial, the prosecution established that petitioner made inconsistent statements to police regarding his whereabouts on the day Rene disappeared.
On February 25, 1996, petitioner initially told authorities he had left home around 1:30 p.m. and went to Pep Boys with one of his sons to buy a muffler. Petitioner and his son drove around to several locations looking for someone to weld the muffler on. Petitioner came home briefly at approximately 5:15 to 5:30 p.m. He then went to Fresno to pick up his girlfriend. They got home at around 7:30 p.m.
At trial, one of petitioner's sons agreed that the Pep Boys was about a five- or 10-minute drive from their house. Petitioner initially testified it was “maybe” a 10-minute drive, but he did not know for certain. He later agreed with his trial attorney's assessment it was a five- or 10-minute drive.
Three days later, petitioner continued telling law enforcement a similar version of events. He told Investigator Bruce Blodgett that he and his son had gone to Pep Boys in Hanford around 1:00 to 1:30 p.m. on February 25, 1996. After that they went to Wal-Mart which was in the same shopping center as Pep Boys. Petitioner stated he and his son also went to Harris's Auto Wrecking in Hanford and they then went to an antique store. Petitioner stated his son was with him the entire afternoon. Petitioner told Investigator Blodgett that he had the muffler he purchased on Sunday installed at a muffler shop on Tuesday.
On March 22, 1996, the day after Rene's body was discovered, Investigator Moes interviewed petitioner. The interview, which lasted approximately three and one-half hours, was recorded on both video and audiotape. Portions of the audiotape were played for the jury. During the interview, petitioner again claimed he had left the residence in the early afternoon on the day Rene had disappeared. This time, he claimed he left with one of his sons to go to Pep Boys around 12:00 to 12:30 p.m. They stayed at Pep Boys for approximately 20 minutes and purchased a muffler. They went into a nearby Wal-Mart and stayed for approximately 30 minutes looking for clamps for the muffler. They went to a junkyard and spoke with Marvin Harris in hopes of finding someone to weld on the muffler. They went with Harris to purchase some gas for Harris's vehicle. They returned to the junkyard and spoke a few more minutes. After going to an antique store, petitioner claimed he returned home about 5:00 or 5:15 p.m. He could not remember exactly what he did in the house. He left and got some propane for the vehicle. He went to Fresno to pick up his girlfriend. On the way back, he stopped and probably got some fast food. He returned home around 7:30 p.m. When he returned home, police were there looking for Rene. He did not want police to search the trailer because he had some drug paraphernalia in there.
When initially interviewed by police, petitioner could not produce a receipt for the muffler. At trial, Lester Langley, a district loss prevention manager with Pep Boys, testified regarding the inventory and sales paperwork used by Pep Boys. An item movement report from the Pep Boys store in Hanford in the Wal-Mart shopping center showed that a Crew Chief brand muffler, part No. A9141, was purchased on February 25, 1996, at 5:25 p.m. It was the only muffler purchased that day. Langley identified an empty muffler box obtained from petitioner as the same muffler that was sold on February 25, 1996.
During his trial testimony, petitioner indicated he purchased the muffler at 5:25 p.m. on the day Rene disappeared.
The trial evidence established that petitioner did not visit Marvin Harris at the junkyard on the day Rene disappeared. Instead, he likely visited Harris on Tuesday, February 27, 1996, between 10:00 a.m. and 2:00 p.m. Petitioner wanted Harris to weld on a muffler for him. It was raining that day. Neither Harris nor his girlfriend saw any children with petitioner or in his truck.
Rene disappeared on February 25, 1996, which was a Sunday.
Rain fell in Hanford on February 27 and 29, 1996, but it did not rain in Hanford on February 25, 26 or 28, 1996. On the day petitioner visited with him, Harris was preparing to take scrap to a recycler. Deliveries of scrap metal were made from the junkyard to the recycler on February 26, 27 and 28, 1996, but not on February 25, 1996.
Ken Conley testified he saw petitioner at the Harris junkyard on the Tuesday after Rene disappeared, February 27, 1996. Petitioner asked Conley if he could weld a muffler on his car. That evening at approximately 10:30 to 11:00 p.m., Conley went to the Galik residence and welded on the muffler. Conley did not see any police around the house and left at approximately 1:30 a.m.
D. Petitioner was home at times during the day Rene disappeared.
The prosecution established that petitioner was home at times during the day Rene disappeared. Sometime that day between noon and 12:30 p.m., Mrs. Galik and her friend left the residence. Petitioner was in the garage at that time. After Mrs. Galik and her friend left, petitioner's younger son played video games in a bedroom with a friend. He also watched television in the living room. At some point, the boys went to a local school. When leaving, petitioner was in the trailer. A short time later, the boys returned home to play more video games. The son did not see petitioner when they returned. The son's friend left that afternoon when his father came to the Galik residence. At that time, petitioner's younger son and his friend had been in a bedroom playing video games. The father rang the doorbell, and the son answered the door.
Mrs. Galik and her friend returned to the Galik residence at about 6:15 p.m. The house was empty.
Petitioner's older son spent much of that day at the home of his friend. The older son came home sometime between noon and 1:00 p.m. to eat and pick up clothes before returning to his friend's house. According to the son, nobody was home at that time. He was home for 30 minutes to an hour.
The younger son testified that, after his friend left, he continued playing video games for a while. He then watched television in the living room. According to the son, petitioner came inside the residence and watched a movie with him in the living room. They watched a movie for about 60 to 90 minutes. During that time, petitioner's other son called twice and asked to borrow a bicycle. The other son spoke with petitioner and asked for a ride. Petitioner said he was watching a movie. Petitioner declined to leave to pick up his older son.
According to petitioner's younger son, after the movie ended, he and petitioner went to Pep Boys to purchase a muffler. They went to Wal-Mart to look for clamps. They returned to the Galik residence. When they pulled up to the house, the son saw Rene's sister riding a bicycle away from the Galik residence. The son yelled at her, but she continued riding away.
A short time later, the younger son and petitioner left and purchased propane at a local gas station. They returned home for a few minutes. The son waited in the vehicle while petitioner went inside to get something to drink. They left again and drove to Fresno to pick up petitioner's girlfriend. They got her at about 6:15 p.m.
Petitioner received telephone calls at the residence at 1:32 p.m., possibly at 1:55 p.m., and finally at 2:41 p.m.
In his reply, petitioner admits he “was involved in telephone calls with family members during the time [Rene] would have presumably arrived at the Galik home.” Petitioner, however, argues this shows he could not have committed this crime because “he was on the telephone at the same time that the crime was committed.” We disagree his participation in telephone calls at the Galik residence demonstrates he was unable to commit this crime.
E. Petitioner told his younger son to lie for him.
During a recorded conversation with police, petitioner's younger son said that, on the day Rene disappeared, petitioner had instructed him “to tell anyone that asks” that they went to Wal-Mart to buy clamps. At trial, the son testified that he went to Pep Boys with petitioner to buy the muffler, and afterwards they went to Wal-Mart to buy clamps. The son could not remember ever telling officers that petitioner had told him to lie about going to Wal-Mart, and the son denied making that statement.
At trial, petitioner claimed he had instructed his son to lie about going to Wal-Mart because he was late picking up his girlfriend that afternoon. Petitioner told the jury that he could no longer remember if he went to Wal-Mart on the day in question. He was not certain if that happened or not. Petitioner later testified he “never asked anybody to lie for me except [his son] that night.” He reiterated he asked his son to say something about Wal-Mart if he was late picking up his girlfriend.
Other evidence suggested petitioner may have lied to his younger son about their shared sock drawer. This son wore “[a]nkle socks” that were similar to “jogging” socks. The son shared a dresser with petitioner. Police believed that the sock used to gag Rene had come from that dresser. On the day Rene disappeared, the younger son had noticed that the sock drawer was “open and messy.” When the son asked petitioner about it, petitioner said “the FBI” had searched the drawer.
The day Rene disappeared, both uniformed and non-uniformed police officers were at the Galik residence.
F. Petitioner admits to the jury he was not truthful with police.
At trial, petitioner denied seeing Rene on the day of her disappearance. He denied killing her. His defense was based on the contention that his half brother, Michael Galik, was the person guilty of the crimes charged against him.
At trial, Michael testified that on the day Rene disappeared he was in Fresno at his place of employment until about 3:00 p.m. He then spent time with a friend before going to her residence until about 9:00 p.m. Michael's friend confirmed his alibi for the jury.
On cross-examination, petitioner testified that, on the day Rene disappeared, he had returned home around 10:30 a.m. after taking his girlfriend to work in Fresno. He stated he was in the garage working on his mother's car most of the time, he watched TV for a while, and did some drugs. He stated he did “crank, or meth” off and on all day.
Petitioner admitted he had told police he went to Pep Boys to buy a muffler in the early afternoon. He claimed he had repeated this same story to the police a number of times because he was worried about “the stuff” in the trailer. Once the drugs were discovered and ignored by the police, petitioner did not change his story because he was worried that if he did, he would get into trouble for lying to the officers.
Petitioner agreed with the prosecutor that he told “a total and complete fabrication” about going to the junkyard and speaking with Marvin Harris on the day Rene disappeared. Petitioner testified he had been afraid to change his story.
Petitioner admitted he was “probably” home at 1:30 p.m. on the day Rene disappeared. He testified he told police he had left to get a muffler around that time to “keep them from being suspicious and going through my trailer.”
II. Concerns Surrounding Jury Deliberations.
The jury began deliberating in this matter on August 8, 1997. It did not reach a verdict until August 20, 1997. In the interim, and as detailed in our prior opinion, juror misconduct and other issues arose.
A. The juror misconduct.
On August 15, 1997, the foreman alerted the court that Juror No. B-62 had expressed details that were not trial related. According to the foreman, Juror No. B-62 had stated that one of his family members had purchased drugs from petitioner, and petitioner had molested that family member. Juror No. B-62 also told the foreman that “from day one” his mind had been “made up.” (People v. Galik, supra, F029543.)
The foreman identified three other jurors who had been told this same story. The court interviewed each in turn. Two of those jurors, (Nos. C-54 and A-35) separately informed the court that Juror No. B-62 had commented to them about his niece or some other relative who had purchased drugs from petitioner (or used drugs with him), and petitioner had possibly molested her. One of these jurors (No. A-35) had heard that kidnapping was involved. The third juror (No. A-22) indicated she had not heard Juror No. B-62 referring to improper material that was not in evidence. She had nothing to say about any possible juror misconduct. (People v. Galik, supra, F029543.)
The court questioned Juror No. B-62, who stated he had received information from his ex-wife that a member of his family had had contact with petitioner. He acknowledged he had shared this rumor with other jurors. The court removed Juror No. B-62 from the jury panel for misconduct. (People v. Galik, supra, F029543.)
The remaining 11 jurors were brought into the courtroom and told that one juror had been excused for misconduct. Each juror was asked in turn if he or she had heard any information (directly or indirectly) that former Juror No. B-62 had related. Four jurors, including those already interviewed by the court, indicated they had heard such rumors. They all indicated they could disregard them. The remaining jurors stated they had not heard such rumors. An alternate juror was impaneled and the jury was excused. (People v. Galik, supra, F029543.)
B. The matter involving the district attorney's investigator.
About seven days into deliberations, the prosecutors received an anonymous phone call stating one juror had been discussing the case with that juror's sister. Without alerting the trial court, the prosecution directed an investigator to interview the sister. The prosecution determined that no misconduct had occurred.
When the court became aware of this incident, it asked the prosecution to refrain from further independent investigations into possible juror misconduct without notifying the court and defense counsel. The juror in question was called into court (which she had previously requested) and she was asked to discuss the incident. The juror was upset by the investigation, but assured the court that it was not going to impact her continued participation on the jury in any way. Petitioner did not object to this juror's continued participation on the jury, and he did not complain of prosecutorial misconduct. (People v. Galik, supra, F029543.)
III. The Jury Finds Petitioner Guilty And This Court Affirms The Judgment.
The jury convicted petitioner of murder (§ 187, subd. (a)) and found true a special circumstance allegation that the murder was committed during the commission of or attempted commission of the crime of lewd or lascivious acts on a child under the age of 14. Because the jury found true the special circumstance allegation, petitioner faced the death penalty or LWOP. (§ 190.2, subd. (a)(l7)(E).) Following a penalty phase, the jury agreed on LWOP, which the trial court imposed.
In 2000, this court affirmed petitioner's judgment. (People v. Galik, supra, F029543.)
IV. The Relevant Procedural History Following Our Affirmance.
We summarize the relevant events following this court's affirmance of the judgment of conviction.
A. Petitioner files a series of petitions for a writ of habeas corpus.
In 2001, petitioner filed a petition for writ of habeas corpus in the Kings County Superior Court. The petition raised numerous claims of alleged ineffective assistance of counsel and jury misconduct. The lower court conducted an evidentiary hearing in 2001, and denied the petition in January 2002.
In September 2002, the California Supreme Court summarily denied petitioner's original petition for writ of habeas corpus. This petition had raised the same issues which had been raised in the lower court.
In 2006, the United States District Court for the Eastern District of California denied petitioner's petition for writ of habeas corpus. The petition, which had been filed in 2003, had raised numerous claims of alleged ineffective assistance of counsel and jury misconduct similar to the claims that had been raised in the superior court and California Supreme Court petitions.
B. The Northern California Innocence Project is appointed and it secures a lab to test evidence in this matter.
In 2012, the Superior Court jointly appointed the Northern California Innocence Project (NCIP) and the California DNA Project to represent petitioner as postconviction DNA counsel pursuant to section 1405. That same year, NCIP and the Kings County District Attorney's Office entered into an agreement to test certain items of evidence in this case. In June 2012, nine items previously held by the superior court were transferred to Bode Technology (Bode) in Virginia for testing. The items included the duct tape that had been recovered from Rene's face. In November 2012, Bode received four swabs that had been collected from Rene's vaginal vault around the time of her autopsy.
Based on the supplemental SART assessment form prepared by the SART nurse, swabs were collected from the following locations during the examination of Rene's body: (1) left pubic mound; (2) midline pubic mound; (3) right pubic mound; (4) right labia majora; (5) left labia majora; (6) clitoral hood; (7) left labia minora; and (8) right labia minora. In addition, a second rape kit was opened and four more swabs were “inserted into the vaginal vault simultaneously and inserted about [five to six] centimeters into the vaginal vault.” Two “dried slides” were made from one of these vaginal swabs.
C. Petitioner files his second petition for writ of habeas corpus.
In 2014, petitioner filed his second petition for writ of habeas corpus in the Kings County Superior Court. Petitioner asserted that Bode had discovered a partial, single source male DNA profile collected from the opening of Rene's vagina, and petitioner was excluded as a contributor to that profile. The petition also alleged that a mixed sample of DNA had been collected from the duct tape recovered from Rene's mouth, and petitioner had been excluded as a major contributor to that mixed profile. It was further asserted that, although petitioner could not be conclusively excluded as a minor contributor to the DNA on the duct tape, there was strong statistical/quantitative support for the proposition that petitioner was excluded as a contributor to the biological material collected from that piece of evidence. Petitioner argued these results represented new evidence that demonstrated his innocence.
In a declaration signed on June 19, 2014, petitioner's DNA expert, Norah Rudin, stated she had analyzed the electronic data and associated analysis produced by Bode in regard to male DNA located on the duct tape recovered from Rene's face. Rudin had also analyzed results from the vaginal swabs. According to Rudin, “[a]n autosomal analysis” of the sample from the duct tape showed a complex mixture of DNA from at least three individuals. The majority of the DNA in this sample appeared to be male, but at least “86, 000 times more support exists for the proposition that the profile of [petitioner] is absent from the profile than for the proposition that his profile is present.” Rudin also opined that a Y-STR analysis was conducted from the duct tape sample, which exhibited “overt evidence of at least three male contributors. The DNA profile of [petitioner] was not detected in the male DNA mixture located on the duct tape recovered from the victim's face.”
In September 2014, the superior court issued an order to show cause.
In the return filed in December 2014, respondent disclosed for the first time that the DOJ lab in Fresno had determined that contamination was responsible for the major male DNA profile that Bode had discovered on the duct tape. In 1996, a latent fingerprint analyst for the Fresno DOJ had handled that evidence, and he was matched as the contributor to the major male profile. Respondent argued that petitioner could not be excluded (or included) as a possible minor contributor to this DNA mixture.
D. The Fresno DOJ conducts additional testing.
In a January 2015 report, the Fresno DOJ documented the results of additional DNA testing it conducted. Among other things, and based on Y-STR DNA typing, the DOJ discovered “a low level partial result” from “the epithelial cell (e. cell) fraction” of the swab of Rene's left labia majora. This profile was “consistent” with the “partial male haplotype” obtained by Bode from the vaginal swabs. In other words, the partial profile recovered from the non-sperm fraction of the left labia majora is the same as the partial male profile recovered from the vaginal swabs.
“Y-STR refers to short tandem repeat testing that is specific only to the Y-chromosome.” While autosome DNA testing is done on chromosomes that everyone shares, “Y-STR testing focuses only on the male DNA in the sample.” This testing is done in sexual assault cases where an “overwhelming amount of female DNA would mask any male DNA” in the sample.
“The partial male haplotype obtained from the vaginal swabs by [Bode] contained more genetic information than the partial male haplotype obtained from the left labia majora swab.”
E. Petitioner amends his claim.
In the denial filed in April 2015, petitioner acknowledged that the DNA results from the duct tape were no longer evidence of his innocence. He asserted that the DOJ's discovery of unknown male DNA on Rene's left labia majora, which was consistent with the DNA profile from the swab taken of the vaginal opening, continued to support his claim of innocence.
F. NMS Labs conducts additional testing.
In 2016, NMS Labs (NMS) conducted additional DNA testing in this matter. In its August 2016 report, an NMS biologist explained that two items of evidence, Rene's underwear and a towel, contained male DNA. The underwear produced an inconclusive Y-STR DNA test result. The towel produced a partial Y-STR DNA profile that was consistent with an unknown male.
The NMS report used the words “around neck” to designate this towel.
In October 2016, petitioner's forensic DNA consultant, Rudin, reviewed the electronic data produced by NMS. She concluded that the two alleles collected from the towel are inconsistent with both the Y-STR profile of petitioner and the redundant partial profile previously discovered on swabs collected from Rene's left labia majora and vagina. Rudin opined that the NMS test results provided no additional information as to the identity of the perpetrator of this crime.
V. The Evidentiary Hearing Conducted Below.
In November 2017, the superior court conducted a two-day evidentiary hearing regarding the petition for writ of habeas corpus. In general, petitioner asserted he was innocent because a redundant partial DNA profile from an unknown male was discovered on the swabs associated with Rene's vaginal opening and the left labia majora. Petitioner claimed at least one juror would have had reasonable doubt as to his guilt. In contrast, respondent focused on how inconclusive the DNA results were, and respondent emphasized the possibility of contamination.
We summarize the material evidence from that hearing.
A. The testing completed by Bode.
In August 2012, Bode received four pairs of panty hose, a bed sheet that Rene was wrapped in, her eyeglasses, a sock removed from her mouth, another pair of panty hose, a blood stained T-shirt, and pieces of duct tape removed from her face. In November 2012, Bode received the vaginal swabs from the SART examination.
One of Bode's DNA analysts, Sarah Shields, conducted Y-STR DNA testing. In or about 2013, Shields conducted testing on the vaginal swabs that were in the SART kit. The SART kit had four boxes, but one box was empty when Shields removed the swabs.
Because one was missing, Shields was only able to test three of the four vaginal swabs. She initially tested a portion of each of those three swabs, but it did not produce enough male DNA to upload anything into the combined offender DNA index system (CODIS). There was not sufficient male DNA for STR testing, but “male DNA [was] detected in our inconclusive range of the test.” She then combined the three swabs and performed Y-STR testing on the “combined extracts.”
In addition to the three vaginal swabs, Shields also received swabs from the other locations of Rene's genitalia.
With Y-STR testing, Shields detected a partial male profile, which was not a mixture. There were about 75-80 male cells, which is considered a low amount. Shields could not testify regarding how that DNA was transferred to the vaginal swabs. Petitioner was excluded as a possible donor. No sperm was detected on the vaginal samples. Because Y-STR testing was used, Shields was unable to search CODIS to match the partial male profile which she detected. Y-STR profiles are not CODIS eligible.
In a declaration signed March 31, 2015, Rudin opined that at least two explanations exist for the presence of male DNA in the non-sperm fraction. Either it originated from non-sperm cells or it originated from sperm cells “that lost coherence due to time and environmental conditions, allowing the DNA to partition into the non-sperm fraction during DNA extraction.”
Shields confirmed that the DNA from the vaginal swabs was a “low level.” She described “touch DNA” as a “low amount of DNA that is transferred to an object not through a body fluid.” Touch DNA does not contain as much DNA as body fluid.
Shields also conducted Y-STR DNA testing on the duct tape, which generated a partial DNA profile consistent with a mixture of at least two individuals. Petitioner was excluded as a possible contributor of the major component of that profile. According to Shields, petitioner could not be included or excluded as a contributor of the minor component. The amount of male DNA on the duct tape was more than on the vaginal swabs.
Shields confirmed that contamination was possible for the male DNA revealed by her testing. She did not believe any contamination could have originated from Bode based on the precautions that it implemented. She opined that any possible contamination would have originated from the manufacture of the evidence, but she acknowledged that such contamination is rare.
According to Shields, it was possible the vaginal swabs contained the same biological material from 1996. However, it was possible the vaginal swabs were or were not contaminated, and it was possible they were or were not associated with this crime.
B. The concerns associated with the testing done in 1996 by the Fresno DOJ.
Delia Frausto Heredia is the lab director for the DOJ in Fresno. In 1996, the latent print unit and the DNA biology unit occupied the same building. They were separated by a door. At that time, masks were not required and the standards were not as stringent as they are now to ensure latent print analysts did not contaminate items of evidence. Heredia agreed it was possible contamination may have occurred in 1996; however, she also agreed it was also possible contamination had not occurred.
C. The testimony of DNA expert Mindy Crow.
Mindy Crow is a senior criminalist at the DOJ in Fresno. During the hearing below, the parties stipulated that she is an expert in DNA analysis.
Crow explained that the Fresno DOJ began using Y-STR DNA testing around 2008. She reviewed Bode's report in this matter about an unknown male major profile on the duct tape. She agreed petitioner is excluded as a possible contributor to that major profile. Instead, a DOJ employee was the contributor to that profile.
According to Crow, the duct tape in question had been submitted to the Fresno DOJ lab separately from the vaginal and labia swabs taken from Rene. No records indicated that the latent print analyst had handled the swabs or otherwise contaminated any other item in this case. Crow testified that the major component on the duct tape did not match the Y-STR profile on the vaginal swabs. If there was contamination, it was not the same contaminant.
Crow agreed with Bode's assessment that petitioner was eliminated as a possible contributor to the Y-STR profile found on the vaginal swabs. Based on Bode's information, it appeared a single source profile was on the vaginal swabs.
Crow tested the various labia swabs. She “obtained various amounts of male DNA on various swabs” she examined. On the swab from the left labia majora, Crow detected “a partial Y-STR profile” of a “few alleles” that were consistent with Bode's results from the vaginal swabs. The partial profile from the left labia majora appeared to be a single source profile. There was no evidence it was from more than one person. Crow testified that the left labia majora swab had “low level results.” In response to a question regarding the weight that should be given to the redundant profile detected on the vaginal and left labia majora swabs, Crow opined it was “situationally dependent. The consistency in this case is again very partial so it means less to me for example [than] two full profiles that are consistent.”
In a declaration signed March 31, 2015, Rudin agreed with DOJ's determination that a partial profile recovered from the non-sperm fraction of the left labia majora “is the same as the partial male profile recovered” from the vaginal swabs. However, Rudin also opined that “a trace additional male” could be present on the left labia majora swab, but that could also be “artifactual” as it was “a few apparent peaks below the analytical threshold.”
Crow tested other swabs but she did not obtain profiles she was willing to interpret other than to note “partial” or a “mixture.” She did not compare those results to any submitted reference samples in this case because, in her opinion, the profiles from the other swabs were not suitable for interpretation.
To rule out possible contamination, Crow was provided with profiles of 23 males who may have contributed to the DNA profiles. All 23 of these males were eliminated as possible contributors to the unknown profile appearing on the vaginal swabs.
Michael Galik, petitioner's half brother, was also excluded as a possible donor.
Crow explained that, when she received the swab boxes in 2014 from Bode, one box had both a vaginal canal swab and a right labia minora swab. A box for a vaginal swab was empty. She indicated it was possible those two swabs could have contaminated each other.
Crow tested a total of eight swabs. No sperm was detected. She found indications of at least three males on the right labia majora swab. However, those results could involve more or less than three males because “stutter” was a possibility. She did not know how those profiles got onto this swab.
In a declaration signed March 31, 2015, Rudin agreed the “Fresno DOJ correctly reports that at least three males are detected in the non-sperm fraction of the right labia majora swabs.”
Crow's testing discovered different alleles than what Bode's results had uncovered from the vaginal canal. The clitoral hood swab had less DNA, only two alleles. This was from a different male than what Bode had found. The midline pubic mound had very low level DNA. The right pubic mound had “indications” that two or three males left DNA. One was different than what Bode had found.
In light of the contamination on the duct tape, Crow agreed it was possible the low level DNA was also the result of contamination. This contamination could have occurred in 1996. She could not be absolutely certain this DNA was associated with the crime. However, she did not know if the vaginal swabs or the left labia majora swab were contaminated. She noted that if “huge numbers” existed associated with a single source profile, that would provide “good assurance” that person contaminated something, but that was not the case in this situation.
Crow explained that sometimes touch DNA is a low level. The contamination of the duct tape did not necessarily mean other evidence was contaminated.
D. The concerns about the autopsy.
The former chief deputy coroner for Kings County, Billy Allen Willard, was present when law enforcement recovered Rene's body from the kiln. Protective clothing was worn when her body was removed. Willard attended her autopsy, which occurred on or about March 22, 1996. A SART exam was performed around the conclusion of the autopsy. The autopsy and SART exam were recorded on video.
As noted in the SART report, Rene's body was in a state of decomposition. There were no face or neck tissues, and her skull was exposed. The area around her genitals had evidence of decomposition, but this area was better preserved from the rest of her body.
A pathologist, Armen Dollinger, performed the autopsy. An evidence technician from the Hanford Police Department, Thomas Scheeringa, was present. Other unidentified people were in the autopsy room at various times.
Willard explained that procedures during this autopsy were less stringent than they are now. Prior to the autopsy starting, Willard spoke on a telephone, which he had held with his gloved hand; he then assisted in the autopsy. He and Dollinger removed Rene's pants. According to Willard, he “[m]ost probably” touched Rene's pants with the same gloves that he had worn while speaking on the telephone.
The verified writ petition asserts in a footnote that, prior to this evidentiary hearing, the parties entered into several stipulations regarding Willard's recollection of the 1996 procedures of the Kings County Coroner's Office. Petitioner cites exhibit 37 at page 13 as support for these stipulations. That exhibit filed with this court, however, does not have 13 pages and it does not contain any purported stipulations. According to petitioner's representations in his writ, the coroner's office used soap and water to scrub the autopsy table. Willard did not scrub the walls between autopsies or clean the tables immediately preceding the next autopsy. The floor was mopped but not with a set procedure. At the time of Rene's autopsy, a box of 100 gloves was available for use by personnel. Once the box was opened, it was not closed or sealed, allowing anyone access to it. Dollinger and Scheeringa assisted the SART nurse by holding the vagina open so she could visualize the labia minora, clitoral hood and hymenal tissues.
Although protective “bunny suits” were worn during this autopsy, they were unzipped, which was common in 1996. Dollinger wore a hood during the autopsy; however, other people in the room, including Willard, did not wear a hood.
According to the supplemental SART assessment form, the nurse also wore a face mask during her participation in the SART exam.
Willard testified that he had conducted over 1, 000 autopsies with Dollinger. According to Willard, Dollinger did not use “disposable” gloves but used a pair of “more expensive, more heavy duty” gloves during autopsies. Dollinger would reuse these gloves after washing them with soap and water. During this autopsy, Dollinger touched paper towels and the metal dispenser, which was not sanitized. Willard admitted it was possible multiple people could have touched that dispenser.
Willard confirmed that “no specific cleaning procedure” existed for the x-ray machine used during this autopsy. Willard touched portions of that x-ray machine with his gloved hands.
Before the SART examination, Dollinger examined Rene's genitalia. During the SART examination, Dollinger held open her genitalia so the SART nurse could collect swabs. According to Willard's recollection, only the nurse and Dollinger opened Rene's genitalia.
In a declaration signed March 31, 2015, Rudin stated, “One reasonable explanation for the presence of the foreign male DNA detected on the external genital swabs (e.g., the three male profiles detected on the non-sperm fraction of the right labia majora swab, as well as the possible additional male profile detected in the non-sperm fraction of the left labia majora swab), is contamination introduced from the exterior surfaces of the gloves used to hold open the exterior genital region during the collection of the vaginal swabs.”
According to the supplemental SART assessment form, both Dollinger and Scheeringa “assisted in holding the vagina open” so the nurse “could visualize the labia minora, clitoral hood, and hymenal tissues.”
Willard agreed that neither Rene's genitalia nor the swabs came into contact with the walls in the autopsy room, the paper towel dispenser, the x-ray machine, or the telephone.
E. The testimony of DNA expert Elizabeth Anne Johnson.
Elizabeth Anne Johnson is a consultant in forensic biology. She is a DNA expert who reviewed evidence in this matter.
Johnson expressed concerns about Dollinger reusing gloves during autopsies. She noted his gloves may not have been cleaned well enough or decontaminated. A SART examination would typically use disposable gloves.
Johnson stated that the problem with Dollinger's reuse of gloves is that “they would not necessarily be cleansed well enough or decontaminated well enough for cells, cellular material from one case to another or from handling a piece of equipment to a body perhaps.” The DNA testing now is very sensitive and “can detect DNA from less than ten cells” and can even detect “something from a cell.” Johnson explained it is “absolutely imperative that the utmost care and caution be taken that exogenous cellular material is not introduced either to the object that is being examined or to, at a later time, the swabs, for example, that were collected that-that no exogenous cellular material get introduced during that process that it ends up as a DNA result.”
Johnson testified that “touch DNA” is a misnomer because it implies you have to “touch something” when it was possible for a person to touch something “and not leave any of their detectable DNA behind.” She defined touch DNA as “usually low level DNA and the physiological source or body fluid source is not identified.” Most of the time, it is not possible to determine how and from where touch DNA originated. A “physiological origin” means “from blood or semen or saliva that you know the body fluid source of the cell.”
Johnson explained that touch DNA does not establish that the person actually touched that object or had direct contact with it. A “primary transfer” occurs “when you leave something from direct contact. Secondary transfer occurs when something you have on, let's say your own DNA on your own body gets picked up by an intermediary and then transferred to something else.”
Johnson called it “an apparent mistake” when two genital swabs in this matter had been placed into the same SART box. That is something that should not happen “because the swabs are intended to be collected and kept separate from one another.”
Johnson confirmed this matter involved DNA profiles that were not searchable. Nobody had been identified. According to Johnson, contamination was possible in this case stemming from unclean gloves or cellular material from prior autopsies. No elimination had occurred for prior autopsies or prior cases. It was also possible the swabs had been contaminated. She emphasized how easy it is to transfer DNA onto a swab. Just because the profile on the vaginal swabs was not consistent with the 23 male profiles, that did not prove the vaginal swabs had not been contaminated.
Johnson noted that alleles had been found on other genital area swabs that were not consistent with alleles found in the Bode profile from the vaginal swab. At least three male donors were represented. Different male sources were responsible for the alleles on the right labia majora than the alleles detected by Bode on the vaginal swab.
Johnson was aware of an article co-authored by DNA expert Norah Rudin which characterized as a “terrifying trilogy” those cases involving contact DNA that had (1) low levels; (2) often multiple contributors; and (3) DNA profiles for which the physiological source is both unknown and unknowable. Johnson agreed with that characterization; however, she would add a fourth component-“when the donor of the profile is not known.” Johnson agreed with Rudin's article that stated, “ ‘When knowledge of the physiological origin of the DNA is lacking then simply postulating an individual source for the DNA loses significance.' ” Johnson noted that when the “terrifying trilogy” is present, “there's more significance put onto that piece of evidence as perhaps there should be when it comes to relevance to the crime. And so in a fourth level of that component when you don't know who that profile is from, you don't even know if it is relevant to the crime.” Johnson agreed that Rudin's term (terrifying trilogy) “absolutely” applied in this case. In addition, nobody knew the source of the multiple profiles.
Johnson could not conclusively say the male DNA located on Rene's vaginal swabs was from contamination or related to the crime scene. “It's not possible to know until the profile is traced to a source.” She could not conclusively say that the DNA on those vaginal swabs did not belong to Rene's attacker. A lot of factors existed that made these results “indecisive.” No source person had been located and it was not clear if these results were relevant to the crime. However, it was conclusive that petitioner was not the source of that DNA.
Johnson agreed that “low level DNA results are commonly introduced, accepted, and used to obtain convictions in current cases.” However, she also cautioned that “many times” low level DNA profiles are rejected as evidence. She agreed “the value of the DNA located on the vaginal swabs” should be “cautiously weighted.” The fact a redundant DNA profile was found on the “outer vagina” did not add great weight to the value of the profile detected on the vaginal swabs because it came from “the same area” of Rene's body, as opposed to an outer piece of clothing, underwear or someplace other than a SART exam swab.
F. The testimony of DNA expert Norah Rudin.
The parties stipulated that Rudin is a DNA expert and a forensic consultant. She confirmed it was not possible to conclusively determine if the swabs taken in 1996 had already been contaminated. However, she noted that as many personnel as possible were tested to rule out contamination in this matter.
In a declaration signed March 31, 2015, Rudin stated, “Reasonable support exists for the proposition that the DNA profile obtained from the vaginal swabs represents biological material deposited prior to the autopsy and the SART exam.” She explained that the vaginal entrance “would present a barrier to any foreign DNA that might be present on gloved hands or instruments used to perform the autopsy or SART exam.” According to Rudin, although Rene's “vaginal entrance was more compromised in this case, due to the decomposed state of [her] body, the vaginal cavity remained at least somewhat isolated from the exterior genital area.”
Rudin cautioned it is not safe to ignore the DNA profile that was obtained on the vaginal swabs. Contamination is always a concern but it was not known if contamination had occurred in this matter. The analyst responsible for contamination of the duct tape did not have a profile on the vaginal swabs. According to Rudin, the commingling of the swabs should not devalue the results from the vaginal swabs. She agreed, however, that low level samples should be viewed cautiously. It was possible some other analyst had touched something in the lab.
Rudin opined that the profile developed from the vaginal and left labia majora swabs is “not insignificant.” That “redundancy is something that one always likes especially in old cases because you can see a profile more than once it gives you more confidence that it actually is real and relevant.” However, insufficient information existed about its relevancy. There was no clear connection to either a perpetrator or contamination. In any event, petitioner had been excluded as a possible contributor.
Rudin agreed that, during Rene's autopsy, Willard had touched a telephone, a writing pen, and his desk. She cautioned, however, those concerns were not a good explanation for how DNA appeared on the swab taken from inside Rene's vagina. It was possible the swab was pre-contaminated. “We simply don't know.” In watching the autopsy video, she did not see Dollinger manipulate the genitalia prior to the SART exam. Although it was a possibility, Rudin opined that Dollinger was not necessarily a good source for the partial DNA profile found on the swab from Rene's vaginal opening. Rudin saw no evidence that anybody, including Dollinger, had placed their hand inside Rene's vagina.
Rudin could not give a likelihood of contamination but she never saw a “particular physical movement” in the autopsy video that showed a possible source of contamination. Dollinger's gloves were not in the “best condition” but she could not say that was a source of contamination. She did agree, however, that if someone was not careful during an autopsy, transfer DNA could occur.
Rudin acknowledged that STR tests are very sensitive, and partial profiles were possible with less than 10 cells. With low level results, however, you cannot be certain the profile is associated with the crime. The DOJ's results showed three numbers on the right labia majora. According to Rudin, this showed either the possibility of (1) three male donors; (2) “stutter” or (3) contamination. She could not testify that the DNA detected on the vaginal swabs was from the perpetrator. She agreed that the absence of a DNA profile does not exclude a person as a perpetrator.
Rudin explained that secondary transfers of DNA occur less often than primary transfers. She agreed that two out of her three factors from the “terrifying trilogy” were present in this matter. The DNA results did lose some significance.
Rudin agreed that contamination is always a concern. She had not seen evidence that the vaginal swabs or the swab of the left labia majora were contaminated. Rudin cautioned that a possibility of contamination does not render the redundant single source profile irrelevant. She could not say whether this profile was the result of contamination or related to a perpetrator, but she agreed that petitioner was excluded. It was unclear if the profile from the vaginal swab was relevant.
VI. The Arguments From Counsel And The Superior Court's Ruling.
At the conclusion of the evidence, the superior court heard argument from counsel. In general, petitioner's counsel asserted that some unidentified male, and not petitioner, had deposited his DNA in the vagina of the victim. According to petitioner's counsel, had the prosecution known of this evidence, either it would have not prosecuted petitioner or the jury would have come to a different decision in this case. Petitioner's counsel acknowledged that Dollinger's gloves “look pretty dirty” in the autopsy video. However, counsel noted that Dollinger never placed his fingers inside Rene's vagina. Petitioner's counsel asserted someone else committed this crime, and it was “unfathomable” for the prosecution to contend the newly discovered DNA evidence was the result of contamination. Petitioner's counsel urged the court to reverse petitioner's conviction.
In contrast, the prosecutor stated, “there are a myriad of ways as to how these evidence samples could be contaminated.” The prosecutor argued that the new evidence was not “decisive” as required under the statute, but “indecisive.” The prosecutor recounted the circumstantial evidence that pointed to petitioner's guilt. The prosecutor contended that, if the court considered the “mountain of evidence” from the trial against the evidence from this hearing, it should conclude that the new evidence was indecisive and the petition should be denied.
The court took the matter under submission. On January 22, 2018, the court issued a written ruling denying the petition. The court noted that a mixed partial DNA profile had been found on the duct tape. A Y-STR profile obtained by Bode had excluded petitioner as a possible major contributor to that profile, but petitioner could not be excluded as a minor contributor to the duct tape DNA mixture. The court stated contamination had occurred and the major contributor to the duct tape DNA mixture was a DOJ employee in the latent print section.
The court wrote that any credibility the duct tape mixed-DNA sample may have once held regarding the question of petitioner's guilt or innocence was undermined by the proof of contamination. The court noted a finding of guilt was still supported because petitioner could not be excluded as the minor contributor of the duct tape profile.
It appears the court failed to consider Rudin's 2014 declaration in which she opined that “[a]n autosomal analysis” of the sample from the duct tape showed a complex mixture of DNA from at least three individuals. The majority of the DNA in this sample appeared to be male, but at least “86, 000 times more support exists for the proposition that the profile of [petitioner] is absent from the profile than for the proposition that his profile is present.” Rudin also opined that a Y-STR analysis was conducted from the duct tape sample, which exhibited “overt evidence of at least three male contributors. The DNA profile of [petitioner] was not detected in the male DNA mixture located on the duct tape recovered from the victim's face.”
The court determined that the vaginal and labia swabs lacked decisive force and value necessary to obtain relief under section 1473. The court expressed concern that, “[w]hen viewed closely, it appears that a significant amount of the source results obtained by Ms. Crow in her testing differ from that found in testing performed by Bode Technologies and/or pointed to more than one contributor.”
According to the court, a “significant” amount of circumstantial evidence regarding petitioner's guilt had been presented to the jury. That evidence included (1) petitioner's failure to inform law enforcement honestly about his location on the day of Rene's disappearance; (2) petitioner's reaction to being informed about the location of the body on the Galik property; (3) Rene had been wrapped in sheets with a pattern identical to that found in the Galik home; (4) Rene was found with her head wrapped in a men's white extra, extra large, size 50/52 T-shirt of the same type found in the bedroom closet shared by petitioner and his two sons; (5) Rene was found with her ankles and wrists bound with nylon hosiery of the same type found strewn about the floor of the hallway leading to the northwest bedroom and found along with a pair of women's shorts on one of the two beds in the bedroom shared by petitioner and his sons; (6) Rene was found blindfolded with a towel bearing the same seashell design as a towel located in the dryer of the Galik home; (7) Rene was found with an athletic sock in her mouth of the same type found in the drawer shared by petitioner and his younger son; and (8) the duct tape used to secure the sock in Rene's mouth was of the same type used by petitioner to wrap a telephone line he had installed from the Galik home to the trailer parked in its driveway.
The court noted that no dispute existed between the parties that petitioner was eliminated as a possible source of male DNA recovered from the swab used to test Rene's vagina and left labia majora. According to the court, however, the probative value of such evidence could not be assumed. “Rather, such evidence must be viewed cautiously in light of: (1) the potential for transfer and secondary transfers of DNA amid multiple credible scenarios where the same could have reasonably occurred, (2) the lack of any knowledge as to the physiological origin of the ‘new evidence' DNA at issue herein, and (3) the low level of the DNA in this case combined with inconsistencies across the many genital swabs collected and tested.”
The court cited Rudin's testimony that, while the partial profile in this case should not be disregarded as insignificant, its relevance was unknown due to a lack of sufficient information as to its origin (contamination versus perpetrator). The court noted that, regarding the right labia majora sample, all three factors of the “terrifying trilogy” apply. “As to the vaginal and left labia majora DNA samples, two of the three factors are clearly present. Such weaknesses in the DNA results obtained in this case undermine both the credibility and significance of such evidence to an extent which, in the opinion of this court, renders the same unlikely to have changed the outcome” in the murder trial. The court denied petitioner's request for habeas corpus relief.
VII. Petitioner Files The Present Writ For Habeas Corpus.
Following the superior court's denial, petitioner filed the present petition for habeas relief in this court in June 2018. In December 2018, we issued an order to show cause why the relief prayed for should not be granted. Respondent filed a return and petitioner filed a reply.
We turn to the merits of the petition.
DISCUSSION
I. We Grant In Part And Deny In Part Both Petitioner's And Respondent's Respective Requests For Judicial Notice.
Both parties have made requests for judicial notice. We grant and deny in part both requests.
A. Petitioner's request for judicial notice.
As part of his request for habeas relief, petitioner asks us to take judicial notice pursuant to Evidence Code section 452, subdivisions (c) and (d), “of the transcripts, briefs and court records” in the following matters: (1) Kings County Superior Court case Nos. 96CM5205, F02943, and 14W0099A; (2) petitioner's prior appeal before us in case No. F029543; (3) California Supreme Court case No. S104894; and (4) United States District Court for the Eastern District of California case No. 1:03-cv-05205-OWW-WMW.
On December 26, 2018, this court deferred ruling on petitioner's request for judicial notice “pending a showing of relevance and availability.” We granted the request regarding this court's prior nonpublished opinion in case No. F029543. (People v. Galik, supra, F029543.)
B. Respondent's request for judicial notice.
In April 2019, respondent filed a request for judicial notice pursuant to Evidence Code section 452, subdivision (d), and California Rules of Court, rules 8.252 and 8.386. Respondent asks us to judicially notice our records in case No. F029543, and of the records of the Kings County Superior Court in case Nos. 01W0003 and 14W0099A.
C. Our ruling on the requests for judicial notice.
An appellate court may take judicial notice of the records of “(1) any court of this state or (2) any court of record of the United States or of any state of the United States.” (Evid. Code, § 452, subd. (d).) “Evidence Code section 459, subdivision (a), permits but does not require a reviewing court to take judicial notice of matters specified in Evidence Code section 452.” (People v. Hardy (1992) 2 Cal.4th 86, 134.)
In part, we both grant and deny the parties' respective requests for judicial notice. We take judicial notice of our records in People v. Galik, case No. F029543. To that extent, both petitioner's and respondent's respective requests for judicial notice are partially granted.
An appellate court, however, will normally not grant a request for judicial notice of records from another court unless the requesting party provides the appellate court with a copy of the record certified by its custodian. (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 743; People v. Meza (1984) 162 Cal.App.3d 25, 33; People v. Preslie, supra, 70 Cal.App.3d 486, 495.)
Although exceptions may exist, “it is the burden of the party requesting judicial notice to show good cause for not furnishing certified copies.” (People v. Preslie (1977) 70 Cal.App.3d 486, 495, fn. 8.)
As part of his verified petition, petitioner filed 40 exhibits with us, consisting of over 1, 000 pages and a CD of the recorded autopsy. Some of the filed exhibits contain documents from the cases referenced above. The parties, however, have not provided us with certified copies of the complete records from the other courts.
Petitioner does not explain why we need to take judicial notice of all of the records from the other courts beyond those specific documents he has already filed with us and made part of this proceeding. We decline to take judicial notice of all “transcripts, briefs and court records” in the various matters set forth in the parties' requests involving the Kings County Superior Court, our Supreme Court, and the federal district court. Those records are not available to us. To that extent, the parties' respective requests for judicial notice are partially denied.
To be clear, we will consider the exhibits petitioner filed with us as part of his verified petition for habeas relief.
II. The Standard To Grant Habeas Relief In This Situation.
A petition for a writ of habeas corpus is a collateral attack on a presumptively final criminal judgment. (In re Cowan (2018) 5 Cal.5th 235, 243.) The petitioner bears a heavy burden to both plead sufficient grounds for relief, and then later to prove them. (Ibid.) We have original jurisdiction in this habeas corpus proceeding. (In re Sagin (2019) 39 Cal.App.5th 570, 578.) We owe no deference to the superior court's decision on the previous petition. We exercise our independent judgment to decide if relief is warranted. (Ibid.)
Petitioner agrees our review is de novo.
Prior to 2017, a habeas corpus petition based on newly discovered evidence could be granted only if fundamental doubt was cast on the accuracy and reliability of the proceedings. (In re Lawley (2008) 42 Cal.4th 1231, 1239.) Under the prior standard, the newly discovered evidence was required to “undermine the entire prosecution case and point unerringly to innocence or reduced culpability. [Citations.]” (In re Lawley, supra, 42 Cal.4th 1231, 1239.)
Our Supreme Court holds that, if a petitioner can show his or her innocence, a petitioner is also not required to refute “each bit of prosecutorial evidence” or undergo “the virtually impossible burden of proving there is no conceivable basis on which the prosecution might have succeeded.” (In re Hall (1981) 30 Cal.3d 408, 423.) Likewise, a petitioner who can demonstrate innocence need not rebut “all other possible scenarios” the prosecution might have presented at trial to support a verdict of guilt. (Ibid.)
However, effective January 1, 2017, relief is now granted if “[n]ew evidence exists that is credible, material, presented without substantial delay, and of such decisive force and value that it would have more likely than not changed the outcome at trial.” (§ 1473, subd. (b)(3)(A); In re Sagin, supra, 39 Cal.App.5th at p. 578.) “For purposes of this section, ‘new evidence' means evidence that has been discovered after trial, that could not have been discovered prior to trial by the exercise of due diligence, and is admissible and not merely cumulative, corroborative, collateral, or impeaching.” (§ 1473, subd. (b)(3)(B).)
According to Merriam-Webster's online dictionary, “decisive” means (1) “having the power or quality of deciding”; (2) “resolute, determined”; and (3) “unmistakable, unquestionable.” (<https://www.merriam-webster.com/dictionary/decisive.> [as of June 4, 2021].) The online Oxford English dictionary defines “decisive” as (1) something “[t]hat decides (a controversy, contest, etc.) conclusively or finally; determinative[;]” (2) “Distinct; marked, pronounced; unmistakable;” (3) “Characterized by decision or determination; resolute, determined; (also) able to make up one's mind; not indecisive.” (<https://www.oed.com/view/Entry/48223?redirectedFrom=decisive#eid.> [as of June 4, 2021].)
Petitioner contends the phrase “more likely than not” has the same meaning as “preponderance of the evidence.” He cites a number of opinions for the proposition he “need only prove that had the newly discovered DNA evidence been presented at his trial, it is more likely than not that at least one juror would have had reasonable doubt.”
We will use the standard articulated in In re Sagin. The appellate court held “[a] changed trial outcome means a result different from the guilty verdict [the defendant's] jury returned. Significantly, that definition does not require an acquittal, but also encompasses a hung jury. (People v. Soojian (2010) 190 Cal.App.4th 491, 521.) ‘More likely than not' means just that-it is unnecessary to survey authorities or attempt to differently define that concept; it is already stated the most understandable way. [The defendant's] burden in this habeas corpus proceeding is to show it is more likely than not the new DNA evidence would have led at least one juror to maintain a reasonable doubt of guilt.” (In re Sagin, supra, 39 Cal.App.5th at p. 579.)
Respondent suggests we should look to the standard employed for granting a motion for new trial under section 1181. We agree with petitioner that section 1181 does not provide guidance in this situation, and we will not rely on that statute.
III. The Parties' Respective Arguments In This Matter.
Petitioner claims he is innocent because another male's partial DNA profile was discovered on the swabs associated with the vaginal opening and left labia majora. He notes that these are the areas where Rene had physical injuries stemming from the sexual assault. He argues contamination has not been established associated with this partial redundant profile, and he maintains this evidence does not lose significance despite the other uninterpretable DNA discovered on the remaining genital swabs. He contends it is not his burden to eliminate all possibility of contamination, which is impossible. He notes that the DOJ was able to locate a contaminate source for the male DNA detected on the duct tape, but it was unable to do so for the redundant profile obtained from the vaginal and left labia majora swabs. He argues “no innocent explanation” could exist for the presence of this single redundant profile. He urges us to grant this petition and permit a new trial to occur because this new evidence would have impacted the vote of at least one juror.
In contrast, respondent asserts that evidence of petitioner's guilt is compelling, if not overwhelming. Respondent emphasizes that the new DNA evidence is inconclusive. According to respondent, it was found in low levels, and the “DNA analysis was only able to produce partial Y-STR profiles; for this and other related reasons, the origin of this material is unknown.” Respondent notes that at least three male donors, and possibly more, were detected. Finally, respondent points to possible contamination of the genital swabs and concerns that the detected partial profiles are not related to the crime. Respondent concludes that “petitioner's new evidence is inconclusive and can be explained by simple contamination.”
A. We need not fully respond to petitioner's arguments that the superior court improperly viewed the evidence.
Petitioner raises concerns regarding how the superior court viewed the evidence. When ruling on the petition below, the court stated, “When viewed closely, it appears that a significant amount of the source results obtained by Ms. Crow in her testing differ from that found in testing performed by Bode Technologies and/or pointed to more than one contributor.”
Petitioner argues the court improperly interpreted Crow's results as evidence that weakened petitioner's claim. According to petitioner, the court improperly ignored Crow's expert testimony that the DNA results from the outer genitalia were uninterpretable. Petitioner maintains it was an “unfair assessment” for the court to conclude the redundant profile collected from the vaginal and left labia majora swabs is inconsequential because there could be evidence of multiple contributors collected on swabs from other areas of Rene's external genitalia.
We need not fully respond to petitioner's concerns regarding how the superior court viewed the evidence. As an initial matter, the court was free to reject any expert testimony it heard. (People v. McCoy (1995) 40 Cal.App.4th 778, 785 [“a trial court is not obligated to accept even unanimous or uncontradicted expert opinion”].) In any event, we give no deference to the superior court's decision on the previous petition and we exercise our independent judgment to decide if relief is warranted. (In re Sagin, supra, 39 Cal.App.5th at p. 578.)
B. We will not consider the postconviction evidence offered by respondent.
To support its position that this petition should be denied, respondent emphasizes its own evidence discovered after petitioner's trial concluded. Attached as exhibit B to its return, respondent has provided a declaration from Blodgett, one of the officers who investigated this homicide. Accompanying Blodgett's declaration is a supplemental police report which he prepared.
The report details that, in July 1998, petitioner's brother-in-law, Merced Perez, contacted Blodgett. According to the report, Perez had been working on Mrs. Galik's vehicle when he discovered bedding stuffed above the gas tank. Perez gave Blodgett two lower bed sheets and a pillowcase. This bedding appeared to match the sheet used to wrap Rene's body.
The report states the sheets would be sent to the DOJ for testing “as soon as possible.”
Respondent asks us to consider this new information. Respondent notes this bedding appears to match the bedding from the northwest bedroom that went missing after Rene's murder. Respondent argues it is “difficult to imagine an innocent explanation for how bedding matching [Rene's] burial shroud came to lodge above the gas tank of Mrs. Galik's car.” According to respondent, petitioner must have hidden this bedding after he molested Rene. Respondent notes petitioner had been working on this same vehicle on the day Rene disappeared. Respondent maintains this new information provides an additional inference of petitioner's guilt.
In contrast, petitioner claims it is improper for us to rely on this evidence. Petitioner contends our analysis should be limited to the evidence presented to the jury, and how his newly discovered DNA evidence may have impacted the jury's assessment of the case. He asserts this information is beyond the scope of his petition.
We agree with petitioner it is improper for us to consider the hearsay information contained in Blodgett's police report. Respondent's request “misapprehends the nature of our inquiry. Our task is to determine whether the new evidence proffered by [petitioner] entitles him to a new trial, not to predict the outcome of a future trial or to determine the ultimate issue of culpability.” (In re Sagin, supra, 39 Cal.App.5th at p. 579, fn. 2, citing In re Figueroa (2018) 4 Cal.5th 576, 592.) Our role in ruling on this petition requires us to decide whether petitioner's new evidence would have changed the trial outcome. In engaging in this analysis, “we consider only the new evidence identified by the petitioner and the trial record. We do not consider other evidence outside the record.” (In re Sagin, supra, 39 Cal.App.5th at p. 579, fn. 2.) Consequently, we will give no weight to the information contained in Blodgett's police report detailing the bedding purportedly hidden underneath Mrs. Galik's vehicle and discovered after petitioner's conviction.
Likewise, respondent points to portions of petitioner's testimony during the 2001 evidentiary hearing from the first habeas petition filed in the superior court. According to respondent, petitioner's testimony during that hearing provides “reason to doubt his credibility on any matter.” We agree with petitioner it is not appropriate to consider petitioner's testimony from the 2001 evidentiary hearing. That testimony is not relevant to the present habeas claim.
C. Petitioner's new evidence is material, it could not have been discovered before trial, it was presented without substantial delay, and it is admissible.
Before we analyze the parties' core arguments, we note that petitioner's new DNA evidence is material. Moreover, this could not have been discovered before trial. The technology to do the more sensitive Y-STR testing did not exist until well after petitioner's conviction. Further, petitioner has demonstrated this evidence has been presented to this court without substantial delay. The verified writ petition and two declarations from petitioner's counsel set forth the extensive steps undertaken to obtain this new DNA evidence and prepare the present petition. Respondent impliedly concedes these points. Finally, there is no dispute regarding the admissibility of the new DNA evidence. Consequently, our analysis focuses on whether the new evidence is “of such decisive force and value that it would have more likely than not changed the outcome at trial.” (§ 1473, subd. (b)(3)(A).)
Material evidence is defined as “[e]vidence having some logical connection with the facts of the case or the legal issues presented.” (Black's Law Dict. (11th ed. 2019) p. 701.)
D. We will weigh the strength of the trial evidence versus the strength of the new DNA evidence.
Petitioner notes that, for matters on direct appeal, “[w]hen the case against a defendant is a close one, an error which otherwise would not be prejudicial may justify a new trial.” (People v. Newson (1951) 37 Cal.2d 34, 46.) He urges us to examine the overall closeness of his case in deciding whether to grant or deny this petition. He points to the following concerns:
(1) The jury deliberated from August 8 to August 20, 1997. Petitioner contends the jury was “clearly troubled by the lack of direct evidence” against him.
(2) On August 19, 1997, the prosecution admitted it had sent an investigator the day before to the home of a juror's sister to question the sister about any communications she might have had with the juror about deliberations. The sister had denied any such communications occurred, and the prosecution determined no misconduct had occurred. The court advised the prosecution to not investigate such matters on its own, and to advise the court if this happened again. The juror spoke with the court about this situation. She expressed concern that her integrity was being questioned. The court assured the juror there was no evidence of impropriety on her part, and she resumed deliberations.
(3) On August 19, 1997, the trial court received a telephone call from a local librarian who reported that a juror's mother had informed a group of people at the library that two jurors believed there was not enough evidence to convict petitioner. When questioned, that juror reported to the court that she had informed her mother that the jury was “having problems, we're pretty well split.” The juror informed her mother that she was “upset about the whole thing.” The juror did not recall talking about anything more specific with her mother.
After discussing the situation with counsel, it was agreed to allow this juror to remain on the panel. The juror had only made a general statement to her mother about frustrations she was feeling. The court admonished her not to discuss this case with anyone outside the jury.
(4) The jury requested numerous readbacks of testimony.
(5) The day after the jury returned the verdict, a different juror told the court that she did not “know if I made the right decision in this case.” She was experiencing anxiety. The court advised the juror she was not able to change her vote after the verdict had been received.
This juror informed the trial court that, during deliberations, other jurors had viewed the case as she did. However, after she decided to change her vote, other jurors changed their votes too. She was concerned that “maybe they changed their vote because I did.” After a recess, the juror informed the court that she felt better and she could continue in the matter. The court ruled that she was still able to participate on this jury. Petitioner's trial attorney raised no objection.
Petitioner cites numerous opinions which conclude that lengthy jury deliberations indicate a case was close. He argues the lengthy deliberations in his trial, the jury's numerous requests for readback, and its acquittal of him on the kidnapping charge, “suggests that this was a difficult case.” According to petitioner, we must consider those points when ruling on his petition. He also notes that one juror was dismissed for misconduct.
Respondent does not directly answer petitioner's assertion that we must consider these other concerns when deciding whether to grant this petition. Instead, respondent contends the jury deliberations were not prolonged, and respondent urges us to only focus on the deliberations that occurred after the juror was removed for misconduct on August 15, 1997. Respondent argues that, after that removal, the jury “only took about three full days of deliberations to reach unanimous verdicts.” Respondent asserts this was “entirely appropriate” following 11 days of testimony. Respondent maintains the deliberations were neither unduly prolonged nor troubled.
In re Sagin has articulated the standard for ruling on a petition for habeas relief based on newly discovered evidence. We find its approach well-reasoned and we will use it. Petitioner must show that his new evidence-viewed in relation to the evidence presented at trial-would raise a reasonable doubt as to guilt. A sliding scale is used. If the trial evidence was overwhelming, “only the most compelling new evidence will provide a basis for habeas corpus relief; on the other hand, if the trial was close, the new evidence need not point so conclusively to innocence to tip the scales in favor of the petitioner.” (In re Sagin, supra, 39 Cal.App.5th at pp. 579-580.)
In conducting our review, we will not consider the subjective reasoning processes of individual jurors. (See Evid. Code, § 1150, subd. (a); People v. Smith (2007) 40 Cal.4th 483, 523.) Consistent with In re Sagin, our analysis must focus on the strength of the trial evidence introduced against petitioner versus the strength of his new DNA evidence.
E. We will not consider the facts supporting the kidnapping charge.
Petitioner was acquitted on a charge of kidnapping involving a separate alleged victim stemming from an incident unrelated to this murder. (People v. Galik, supra, F029543. ) Respondent asserts that, despite petitioner's acquittal, we should consider the facts supporting the kidnapping charge. Respondent notes a jury's acquittal “is not the equivalent of finding the defendant innocent.” (People v. Lloyd (2015) 236 Cal.App.4th 49, 62.)
We decline to consider any of the facts supporting the kidnapping charge for which the jury found petitioner not guilty. Those facts involve a separate alleged victim stemming from an incident unrelated to this murder. Those facts are wholly irrelevant to the newly discovered DNA evidence that is before us. Those facts do not assist us in weighing whether the DNA evidence would have impacted the trial. Accordingly, we will only focus on the strength of the trial facts surrounding Rene's murder and the special circumstance allegation which the jury found true.
IV. In re Sagin.
In October 2019, petitioner alerted us regarding In re Sagin, supra, 39 Cal.App.5th 570, which involves a petition for habeas relief based on newly discovered DNA evidence. Given its general similarities to the present situation, we summarize that opinion in some detail.
The defendant was sentenced to LWOP after being convicted of murder in 1986. The 40-year-old victim, who lived alone, had been repeatedly stabbed. She had a wound to her jugular vein in her neck, and three wounds that pierced her heart and were the likely cause of death. She had other lacerations and bruises. Her lungs showed signs of suffocation. (In re Sagin, supra, 39 Cal.App.5th at pp. 572-573 .) Law enforcement was unable to identify a suspect. Months later, two local jail inmates separately reported that the defendant (who was housed in jail awaiting trial on other charges) had confessed to this murder. “Both inmates had significant criminal records and were known informants who had in the past provided tips to police in exchange for leniency in their own cases. Authorities deemed the information reliable, and [the defendant] was charged with first degree murder.” (Id. at p. 572.)
The trial evidence was in conflict. The defendant's family testified he was out of town with them the entire weekend when this murder occurred. (In re Sagin, supra, 39 Cal.App.5th at p. 575.) In contrast, the prosecution called several witnesses whose testimony placed the defendant in the Monterey area at the time of the murder. (Id. at p. 574.)
The victim's former boyfriend, Russel Wydler, provided testimony that connected the defendant to the victim. Wydler “habitually” asked the victim for money, which she usually provided. According to Wydler, he once took the defendant along on a visit to the victim's house to borrow money. Wydler knew she often left her back door open. Wydler testified he “might have” told the defendant that information. On cross-examination, however, Wydler was impeached from his testimony at the preliminary hearing when he said he had never taken the defendant to the victim's apartment. He explained he had been untruthful at the preliminary hearing because he was afraid of retribution from the defendant. (In re Sagin, supra, 39 Cal.App.5th at p. 573.)
The two jail informants testified. The first informant had occupied a cell next to the defendant. The first informant had previously given police information about a murder case, and he admitted “ ‘it probably crossed [his] mind' that telling police about this murder would be a way to get himself out of jail.” (In re Sagin, supra, 39 Cal.App.5th at p. 574.) He testified that the defendant had talked about a murder involving a woman in that county. According to the first informant, the defendant said police were trying to pin the crime on him using a footprint found at the scene. The defendant knew the victim “had been stabbed three or four times in the heart.” The defendant “also said he had previously been to her house with a man named Russel, who was the victim's boyfriend.” (Ibid.) According to the first informant, the defendant never said he had killed anyone, but the victim had “ ‘caught him in the house' ” and they had fought. “He said the woman ‘took a swing at him and he told her he would kill her, you motherfucker.' ” (Ibid.)
The second informant had also been housed in a cell next to the defendant. The second informant had been convicted of at least 13 felonies, and he had previously been an informant for police. According to the second informant, the defendant gave him a more detailed confession. The defendant first claimed someone was trying to frame him and Russel for the murder. Then the defendant admitted killing the victim after she surprised him while he was alone committing burglary; “ ‘he stabbed her three times in the heart.' ” The second informant recalled the defendant saying he had panicked and took off without taking anything. In exchange for this information, police officers assisted the second informant in securing an earlier release from the parole board. (In re Sagin, supra, 39 Cal.App.5th at p. 574.)
The jury returned a verdict finding the defendant guilty of first degree murder committed while engaged in a residential burglary. It also found him guilty of burglary. He was sentenced to LWOP. (In re Sagin, supra, 39 Cal.App.5th at p. 575.) In 1988, the appellate court affirmed the judgment. It found no legal error but noted the closeness of the case. It observed “ ‘the evidence here was conflicting and derived from testimony by vulnerable witnesses on both sides, where small factors might have tipped the scales.…' [Citation.]” (In re Sagin, supra, 39 Cal.App.5th at p. 576.)
In 2009, the NCIP represented the defendant and it identified certain evidence for DNA testing. In 2010, DNA was discovered on vaginal swabs taken from the victim; the bathrobe she wore at the time of her death; two towels that had been draped on her lower body; hair found on a couch cushion and scrapings taken from underneath the victim's fingernails. None of it matched to the defendant. (In re Sagin, supra, 39 Cal.App.5th at p. 576.)
The bathrobe contained DNA from sperm from both the man the victim was dating at the time and from an ex-boyfriend. The vaginal swabs had DNA from the man she was dating. The hair found on the couch cushion was the ex-boyfriend's. The towels contained DNA from a coworker who visited the victim shortly before her death, as well as from the ex-boyfriend. But the scrapings from underneath the victim's fingernails contained DNA from an unknown male. (In re Sagin, supra, 39 Cal.App.5th at p. 576.)
In 2017, the superior court conducted an evidentiary hearing. A deputy coroner noted that the victim's hands had displayed “ ‘quite traumatic' ” injuries that could have been defensive wounds when “ ‘an individual puts up their hands to defend themselves during an attack or blows.' ” (In re Sagin, supra, 39 Cal.App.5th at p. 577.) Two DNA experts testified. The defendant's expert explained that the scrapings from the fingernails contained “a moderate amount of DNA from an unidentified male contributor.” Accidental contamination from laboratory staff was ruled out. The detected profile was not matched to anyone in CODIS. (Ibid.)
The defendant's expert said “it was possible for the perpetrator of a murder to not leave DNA at the crime scene but that would be unlikely in a killing where a struggle occurred. In a close contact, violent attack, one would expect to find perpetrator DNA “ ‘most of the time.' ” (In re Sagin, supra, 39 Cal.App.5th at p. 577.) “The state's expert also thought it possible for the perpetrator of a crime to avoid leaving DNA, though the ‘more violent the crime gets, the harder it is to not leave anything behind.' ” He could “not rule out the possibility of contamination of the sample as an explanation for the DNA under the victim's fingernails, ” but he also could not argue “ ‘strongly for it.' ” He explained that, in a violent crime case, fingernail scrapings from the victim are tested because “ ‘if there was a struggle, there may be DNA from the perpetrator under the person's fingernails.' ” The parties stipulated to the DNA testing results showing that the defendant's DNA was not present on any item tested. (In re Sagin, supra, 39 Cal.App.5th at p. 577.)
In 2017, the superior court denied the defendant's petition. (In re Sagin, supra, 39 Cal.App.5th at p. 578.) That year, the defendant filed a new petition for habeas relief with the appellate court. (Ibid.) The appellate court noted the DNA evidence could not have been discovered before trial (as the technology to do the testing did not exist until well afterward), and its admissibility was not in dispute. It was undisputed that none of the DNA tested matched the defendant. The parties agreed that the DNA under the victim's fingernails was from an unknown male. As such, the issue before the appellate court was one of law: “whether the DNA evidence ‘would have more likely than not changed the outcome at trial.' [Citation.]” (Id. at p. 579.)
The In re Sagin court noted that, before the Legislature amended section 1473 in 2016, a petitioner had to conclusively establish innocence. “Habeas corpus relief was thus previously reserved for those cases where newly discovered evidence essentially on its own proved a petitioner did not commit the crime.” (In re Sagin, supra, 39 Cal.App.5th at p. 579.) However, the amendment to section 1473 changed that. “A petitioner no longer has to prove innocence but rather must show that the new evidence-viewed in relation to the evidence actually presented at trial-would raise a reasonable doubt as to guilt. The statute creates a sliding scale: in a case where the evidence of guilt presented at trial was overwhelming, only the most compelling new evidence will provide a basis for habeas corpus relief; on the other hand, if the trial was close, the new evidence need not point so conclusively to innocence to tip the scales in favor of the petitioner. The change in the law represents an overall lower tolerance for wrongful convictions. The Legislature has chosen to more closely protect society's interest in ensuring that a person convicted of a crime is the person who committed it.” (Id. at pp. 579-580, fn. omitted.)
The appellate court concluded that the DNA evidence more likely than not would have changed the trial outcome. (In re Sagin, supra, 39 Cal.App.5th at p. 580.) The court reiterated that “the relative strength required of new evidence depends on how close the trial was.” (Ibid.) The court noted the closeness of the case stemming from the conflicting evidence and the credibility concerns surrounding the key witnesses on both sides. (Ibid.) The court rejected the Attorney General's arguments that the prosecution's witnesses, especially the two informants, must be deemed credible because they knew the victim had a relationship with a man named Russel and she had been stabbed in the heart. Although those details bolstered the credibility of the testimony, those details were “not the sort that could be known only to the perpetrator.” (Ibid.)
The appellate court also found unconvincing the Attorney General's reliance on the trial testimony of a 13-year-old girl who had lived in the motel unit where the defendant was staying. She overheard him drunkenly mumbling words indicating he “ ‘ “hit her”' ” and the female was “ ‘ “hurt bad.”' ” According to the court, that testimony was “somewhat vague” and susceptible of alternative explanations. Although the girl's testimony was favorable to the prosecution, “it does not convince us that the case for guilt was exceptionally strong.” (In re Sagin, supra, 39 Cal.App.5th at p. 581.)
The appellate court noted that four alibi witnesses had placed the defendant in San Jose when this murder occurred. Although credibility issues existed, those witnesses contradicted the prosecution's case. (In re Sagin, supra, 39 Cal.App.5th at p. 581.) According to the court, this case was close, and no physical evidence linked the defendant to the crime. The court believed the new DNA evidence would have produced a reasonable doubt in the mind of at least one juror. The court made it clear that the DNA evidence did not prove the defendant “was not present at the crime scene. It proves only that [his] DNA was not on the items tested.” (Ibid.) But only a few items could be tested. It was insignificant that the defendant's DNA was not on the vaginal swab from the victim, and it was “unremarkable” that his DNA was not found on tiny tested areas from the robe and towels (selected because they appeared to be stained with bodily fluid). Although it supported the defense theory that defendant was not at the victim's apartment because he did not leave DNA, that was not conclusive. (In re Sagin, supra, 39 Cal.App.5th at p. 581.)
However, the appellate court reached a different conclusion regarding the “more than trace amount of DNA from an unknown male” detected underneath the victim's fingernails. According to the court, that was “powerful evidence” someone other than the defendant had killed the victim. (In re Sagin, supra, 39 Cal.App.5th at p. 581.) It indicated the victim had close contact with a man shortly before she died, and that male's identity was still not known. “There is no factually supported explanation for how the DNA got there if it is not from the perpetrator (unlike the more expected presence of DNA from [the victim's] boyfriend, ex-boyfriend, and coworker). And it is very likely [the victim's] hands came into contact with her killer-there was an extended struggle, long enough for her to sustain multiple facial injuries and to be smothered with a couch cushion and stabbed five times. She also had defensive wounds on her hands, including some suggesting that she held or squeezed something very strongly.” (Id. at pp. 581-582.)
The appellate court concluded that the DNA under the victim's fingernails did not, standing alone, prove someone other than the defendant committed the crime. Under the former standard used to grant habeas relief, the defendant's petition would not be granted because the new evidence did not point unerringly to his innocence. “But under the revised standard-requiring only that the new evidence would likely have changed the trial outcome-he is. The jury would have considered the DNA results in the context of the rest of the evidence, including the testimony of four alibi witnesses that, if credited, establishes [the defendant] is not the perpetrator. Learning that there was DNA from an unidentified male under the fingernails of a victim whose hands almost certainly came into contact with her assailant, together with no DNA results matching [the defendant], would have caused the jury to view more favorably the testimony of the witnesses who swore [the defendant] was nowhere near the crime scene. Under those circumstances, it is more likely than not that at least one juror would have maintained a reasonable doubt regarding guilt.” (In re Sagin, supra, 39 Cal.App.5th at p. 582.) The appellate court held that the defendant had met his burden of proof. (Ibid.) The judgment of conviction was reversed, and the matter remanded for the District Attorney to elect to conduct a retrial. (Ibid.)
V. The New DNA Evidence Would Not Have Likely Changed The Outcome At Trial.
Petitioner argues his newly discovered DNA “far outweighs the circumstantial evidence” presented against him at trial. He further contends this new evidence “destroys any link” between him and the crime. Finally, he asserts the jury would have been required as a matter of law to acquit him if the newly discovered DNA evidence had been presented. We reject these arguments.
In re Sagin turned on the “more than trace amount of DNA from an unknown male” that was detected underneath the victim's fingernails. That represented “powerful evidence” someone other than the defendant had killed the victim. (In re Sagin, supra, 39 Cal.App.5th at p. 581.) In this matter, the evidence establishing petitioner's guilt was strong and compelling while the new forensic evidence lacks significant evidentiary strength. In contrast to In re Sagin, the DNA evidence does not powerfully demonstrate another perpetrator was responsible for this crime. When compared with the persuasive and significant circumstantial evidence introduced at trial regarding petitioner's guilt, the new DNA evidence is not compelling and it would not have changed the outcome. Based on the sliding scale articulated in In re Sagin, this petition must be denied. The new DNA evidence lacks the required “decisive force and value” necessary to grant this petition. (§ 1473, subd. (b)(3)(A).)
A. The Circumstantial Evidence Was Strong And Compelling Regarding Petitioner's Guilt.
Strong and compelling circumstantial evidence was introduced at trial regarding petitioner's guilt. Petitioner was at the Galik residence around the time Rene disappeared. Sometime between 1:15 to 1:30 p.m., Rene asked her father if she could go play at the Galik house with petitioner's minor sons. Rene left home shortly thereafter. That same day, petitioner's brother-in-law, James Phillips, called the Galik residence at least two and possibly three times. Phillips briefly spoke with petitioner at 1:32 p.m. Petitioner's sister, Sandy Phillips, thinks she remembers talking to petitioner on the phone that same day around 1:55 p.m. James Phillips spoke with petitioner again on the Galik telephone at 2:41 p.m. Petitioner testified at trial that, on the day Rene disappeared, he was watching TV, going in and out of the trailer and the garage, working on his mother's vehicle, and using drugs.
Rene's body was found in the Galik's backyard. When Mrs. Galik told petitioner she was going to call the police, petitioner stated he would be home right away or in a little while. However, he did not return home that evening. At trial, petitioner testified that he did not return home that night because he was in another town helping someone change a battery and repairing a vacuum leak on a van.
Petitioner's girlfriend told the jury she overheard petitioner talking to his mother during this telephone call. Petitioner told Mrs. Galik “he would be [home] as soon as we got back” because “he was getting parts for a car.” The girlfriend testified they went to Tulare that night.
The duct tape used to secure the sock in Rene's mouth was of the same type used by petitioner to wrap a telephone line he had installed from the Galik home to the trailer parked in its driveway. Rene had been wrapped in sheets with a pattern identical to that found in the Galik home. Rene was found with her head wrapped in a men's white extra, extra large, size 50/52 T-shirt of the same type found in the bedroom closet shared by petitioner and his two sons. Rene was found with her ankles and wrists bound with nylon hosiery of the same type found strewn about the floor of the hallway leading to the northwest bedroom and found along with a pair of women's shorts on one of the two beds in the bedroom shared by petitioner and his sons. Rene was found blindfolded with a towel bearing the same seashell design as a towel located in the dryer of the Galik home. Rene was found with an athletic sock in her mouth of the same type found in the drawer shared by petitioner and his son.
Petitioner's younger son told law enforcement that, on the day Rene disappeared, petitioner had instructed him “to tell anyone that asks” that they went to Wal-Mart to buy clamps. Petitioner told the jury he “never asked anybody to lie for me except [his son] that night.” He claimed he asked his son to say something about Wal-Mart if he was late picking up his girlfriend.
Finally, petitioner told law enforcement he had been at Pep Boys in the early afternoon (around the approximate time Rene would have arrived at the Galik residence). The prosecution, however, established he purchased a muffler at Pep Boys much later that day at around 5:25 p.m. Petitioner admitted to the jury he had lied to police about when he went to Pep Boys on the day Rene disappeared. According to petitioner, he was worried about getting in trouble for the drugs in the trailer. He continued telling this lie because he was worried about getting into more trouble.
During closing argument, the prosecutor contended it was petitioner who alone molested Rene and killed her. The totality of the record strongly points to petitioner's guilt. The trial evidence established he had the opportunity to commit this crime; he was home on the day Rene went to his residence. A reasonable inference overwhelmingly exists that the items used to bind and wrap Rene came from the Galik residence. Indeed, some of those items, such as the sock stuffed in Rene's mouth, appear to have come from the very bedroom petitioner shared with his sons. Petitioner reacted strangely when hearing that Rene's body had been found and Mrs. Galik was going to alert authorities. Finally, petitioner made numerous false statements regarding his whereabouts on the day Rene disappeared. His explanations regarding why he lied lack credibility. Petitioner's guilt can be readily inferred from his repeated statements of dishonesty, along with the totality of the significant circumstantial evidence introduced against him. The entirety of the trial evidence was strong and compelling regarding his guilt.
In his reply, petitioner argues his reaction to learning of Rene's death does not indicate his guilt. He cites an online article from Psychology Today for the proposition that someone telling the truth may experience similar feelings (such as nervousness, anxiety or fear) exhibited by someone who is lying. We decline to consider the hearsay information contained in the online article, which is neither part of this record nor part of a request for judicial notice. Further, although petitioner's reaction is open to interpretation, it is reasonable to infer his actions exhibited a guilty mind. (See Evid. Code, § 600, subd. (b) [“An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.”].) “Mental state and intent are rarely susceptible of direct proof and must therefore be proven circumstantially.” (People v. Thomas (2011) 52 Cal.4th 336, 355.)
B. Petitioner's newly discovered DNA evidence lacks the required decisive force and value necessary to grant this petition.
Respondent concedes it is relevant that partial Y-STR profiles have been detected on the genital swabs, and petitioner has been excluded as a possible donor. However, respondent contends the new DNA evidence “has several limitations.” Respondent emphasizes the following: (1) The detected DNA was found in low levels; (2) only partial Y-STR profiles were detected, and the origins are unknown; (3) at least three male donors, and possibly more, were detected. According to respondent, these facts tend to diminish the significance of the detected partial DNA profiles.
Respondent asserts that petitioner has a “newfound theory” that Rene was molested and killed by “multiple mystery assailants.” Respondent contends this theory is “untenable.” We agree with petitioner that respondent has misconstrued petitioner's claim. We do not give any weight to respondent's assertion that petitioner has a new theory regarding multiple assailants.
Petitioner asserts respondent has mischaracterized the evidence at issue in this matter. According to petitioner, respondent incorrectly “conflates” the detected redundant single profile “with the trace, uninterpretable” results detected on the other genital swabs. Petitioner contends the DNA samples collected from the other locations on the genitalia are not relevant to his habeas claim. He argues the samples collected from the right labia majora and minora, left labia minora, clitoral hood and pubic mound were “unsuitable for interpretation” rendering them “inconclusive.” He notes the single source DNA profile from the vaginal and left labia majora swabs is interpretable and “not an uninterpretable mixture.” He concludes this single profile is conclusive.
To establish it is “interpretable and conclusive, ” petitioner notes the experts concluded the single source DNA was from an unknown male, and petitioner was excluded as that donor. Petitioner also notes that this single source was detected on both the vaginal and left labia majora swabs. Finally, petitioner notes the experts all agreed this DNA may be from the true perpetrator.
We find petitioner's assertions unpersuasive. We reject his argument the DNA samples collected from other locations on the genitalia are not relevant to his habeas claim. Multiple partial male DNA profiles were detected on the various swabs. The jury would have learned about the complete forensic picture. As such, we decline to ignore a portion of the DNA evidence in analyzing whether this petition should be granted.
Although petitioner was excluded as a contributor to the partial profiles appearing on the various genital swabs, that does not necessarily exclude him as a perpetrator of this crime. Rudin agreed the absence of an individual's DNA does not “conclusively exclude” that person as someone who may have sexually assaulted a victim.
We agree with respondent that the new DNA evidence lacks significant evidentiary strength. First, the autopsy was performed under conditions that strongly suggest contamination occurred. Second, the experts agreed the detected profiles involve very low levels of DNA. Third, the physiological source of petitioner's new DNA evidence is unknown. Finally, it is unknown if the redundant partial male profile detected on the vaginal and left labia majora swabs is associated with this crime. Petitioner has not shown his new DNA evidence has “such decisive force and value that it would have more likely than not changed the outcome at trial.” (§ 1473, subd. (b)(3)(A).)
1. The autopsy was performed under conditions that strongly suggest contamination occurred.
The hearing below highlighted various concerns about the autopsy. Prior to the autopsy starting, Willard spoke on a telephone, which he had held with his gloved hand; he then assisted in the autopsy. He and Dollinger removed Rene's pants. According to Willard, he “[m]ost probably” touched Rene's pants with the same gloves that he had worn while speaking on the telephone.
Although protective “bunny suits” were worn during this autopsy, they were unzipped, which was common in 1996. Dollinger wore a hood during the autopsy; however, other people in the room, including Willard, did not wear a hood. Dollinger reused gloves that had been employed in prior autopsies. Dollinger would reuse these gloves after washing them with soap and water. During this autopsy, Dollinger touched paper towels and the metal dispenser, which was not sanitized. Willard admitted it was possible multiple people could have touched that dispenser. Willard also confirmed that “no specific cleaning procedure” existed for the x-ray machine used during this autopsy. Willard touched portions of that x-ray machine with his gloved hands. Before the SART examination, Dollinger examined Rene's genitalia. During the SART examination, Dollinger held open her genitalia so the SART nurse could collect swabs.
Johnson expressed concerns about Dollinger reusing his gloves during autopsies. Johnson noted Dollinger's gloves would not necessarily be cleansed or decontaminated well enough to prevent cellular material transferring from one case to another. The DNA testing now is very sensitive and “can detect DNA from less than ten cells” and can even detect “something from a cell.” Johnson explained it is “absolutely imperative that the utmost care and caution be taken that exogenous cellular material is not introduced either to the object that is being examined or to, at a later time, the swabs” so “it ends up as a DNA result.”
One vaginal swab was missing from the SART box when Shields received the evidence to test. Because one was missing, Shields was only able to test three of the four vaginal swabs. Crow explained that, when she received the swab boxes in 2014 from Bode, one box had both a vaginal canal swab and a right labia minora swab. A box for a vaginal swab was empty. Crow indicated it was possible those two swabs could have contaminated each other. Johnson called it “an apparent mistake” when those two genital swabs were placed in the same SART box. That is something that should not happen “because the swabs are intended to be collected and kept separate from one another.”
In light of the contamination on the duct tape, Crow agreed it was possible the low level DNA detected on the vaginal swabs was also the result of contamination. This contamination could have occurred in 1996. According to Johnson, contamination was possible in this case stemming from unclean gloves or cellular material from prior autopsies. No elimination had occurred for prior autopsies or prior cases. It was also possible the swabs had been contaminated. She emphasized how easy it is to transfer DNA onto a swab. Just because the profile from the vaginal swabs was not consistent with the 23 male profiles, that did not prove the vaginal swabs had not been contaminated. Rudin agreed nobody knew whether or not contamination had occurred.
Crow also testified she did not know if the left labia majora swab or the vaginal swabs were contaminated. She noted that if “huge numbers” existed associated with a single source profile, that would provide “good assurance” that person contaminated something, but that was not the case in this situation.
2. The detected profiles involve very low levels of DNA.
The experts agreed the detected profiles involve very low levels of DNA. Shields initially tested a portion of the three vaginal swabs, but that did not produce enough male DNA to upload anything into CODIS. There was not sufficient male DNA for STR testing, but “male DNA [was] detected in our inconclusive range of the test.” She then combined the three swabs and performed Y-STR testing on the “combined extracts.” With Y-STR testing, Shields detected a partial male profile, which was not a mixture. This profile had about 75-80 male cells.
Crow found indications of at least three males on the right labia majora swab. However, those results could involve more or less than three males because “stutter” was a possibility. Crow's testing discovered different alleles than what Bode's results had uncovered from the vaginal canal. The clitoral hood swab had less DNA, only two alleles. This was from a different male than what Bode had found. The midline pubic mound had very low level DNA. The right pubic mound had “indications” that two or three males left DNA. One was different than what Bode had found. Johnson noted that alleles had been found on other genital area swabs that were not consistent with alleles found in the Bode profile from the vaginal swab. At least three male donors were represented. Different male sources were responsible for the alleles on the right labia majora than the alleles detected by Bode on the vaginal swab. Rudin acknowledged that the DOJ's results showed three numbers on the right labia majora. According to Rudin, this showed either the possibility of (1) three male donors; (2) “stutter” or (3) contamination.
On the swab from the left labia majora, Crow detected “a partial Y-STR profile” of a “few alleles” that were consistent with Bode's results from the vaginal swabs. The partial profile from the left labia majora appeared to be from a single person. Crow testified that the left labia majora swab had “low level results.”
According to Rudin, the commingling of the swabs should not devalue the detected results. She agreed, however, that low level samples should be viewed cautiously. It was possible some other analyst had touched something in the lab. In response to a question regarding the weight that should be given to the redundant profile detected on the vaginal and left labia majora swabs, Crow opined it was “situationally dependent. The consistency in this case is again very partial so it means less to me for example [than] two full profiles that are consistent.” Johnson agreed “the value of the DNA located on the vaginal swabs” should be “cautiously weighted.” According to Johnson, the fact a redundant DNA profile was found on the “outer vagina” did not add great weight to the value of the profile detected on the vaginal swabs because it came from “the same area” of Rene's body, as opposed to an outer piece of clothing, underwear or someplace other than a SART exam swab.
3. The physiological source is unknown.
The physiological source of petitioner's new DNA evidence is unknown. Shields confirmed that the DNA from the vaginal swabs was a “low level.” She described “touch DNA” as a “low amount of DNA that is transferred to an object not through a body fluid.” Touch DNA does not contain as much DNA as body fluid. Johnson testified that “touch DNA” is a misnomer because it implies you have to “touch something” when it was possible for a person to touch something “and not leave any of their detectable DNA behind.” She defined touch DNA as “usually low level DNA and the physiological source or body fluid source is not identified.” Most of the time, it is not possible to determine how and from where touch DNA originated. Johnson explained that touch DNA does not establish that the person actually touched that object or had direct contact with it. A “primary transfer” occurs “when you leave something from direct contact. Secondary transfer occurs when something you have on, let's say your own DNA on your own body gets picked up by an intermediary and then transferred to something else.” Rudin agreed that, if someone was not careful during an autopsy, transfer DNA could occur.
Johnson explained that a “physiological origin” means “from blood or semen or saliva that you know the body fluid source of the cell.”
We note that, in a declaration, Rudin stated, “Reasonable support exists for the proposition that the DNA profile obtained from the vaginal swabs represents biological material deposited prior to the autopsy and the SART exam.” She explained that the vaginal entrance “would present a barrier to any foreign DNA that might be present on gloved hands or instruments used to perform the autopsy or SART exam.” According to Rudin, although Rene's “vaginal entrance was more compromised in this case, due to the decomposed state of [her] body, the vaginal cavity remained at least somewhat isolated from the exterior genital area.” Rudin's opinion does not alter our conclusion that, based on the totality of the circumstances, petitioner's new DNA evidence lacks substantial evidentiary strength.
Rudin opined the DNA evidence in this case should not be disregarded as insignificant; however, its relevance is unknown due to a lack of sufficient information regarding its origin. The redundancy of the single partial profile detected on the vaginal and left labia majora swabs did give some confidence “that it actually is real and relevant.” Nevertheless, insufficient information existed about its relevancy. There was no clear connection to either a perpetrator or contamination.
4. It is unknown if the redundant partial male profile is associated with this crime.
The DNA experts all agreed it is unknown if the redundant partial male profile detected on the vaginal and left labia majora swabs is associated with this crime. Rudin used the term “terrifying trilogy” for situations involving (1) low level DNA; (2) multiple contributors; and (3) DNA profiles for which the physiological source is both unknown and unknowable. Regarding the partial profiles detected on the right labia majora, all three factors of the “terrifying trilogy” appear to apply. As to the partial redundant profile detected on the vaginal and left labia majora swabs, two of the three “terrifying trilogy” factors are present. Rudin agreed that two out of her three factors from the “terrifying trilogy” were present in this matter. She admitted that the DNA results did lose some significance. Johnson noted that when the “terrifying trilogy” is present, “there's more significance put onto that piece of evidence as perhaps there should be when it comes to relevance to the crime. And so in a fourth level of that component when you don't know who that profile is from, you don't even know if it is relevant to the crime.” Johnson agreed that Rudin's term (terrifying trilogy) “absolutely” applied in this case.
It is unknown who donated the partial DNA profiles detected on the genital swabs. Because Y-STR testing was used, the partial male profile detected on the vaginal swabs was not CODIS eligible. As Rudin noted, no comparisons were done to either previous autopsy cases or prior cases that the Fresno DOJ had worked around that time.
5. Petitioner has not shown his new evidence has such decisive force and value it would have changed the outcome at trial.
We recognize that contamination is almost always a potential issue in a case involving DNA evidence. We also recognize that, as Johnson testified, low level DNA results may be admissible at trial by law enforcement, and low level DNA results may be used to obtain convictions. The hearing below, however, raised clear concerns regarding the evidentiary strength of the detected partial DNA profiles, including the single redundant profile on the vaginal and left labia majora swabs. Rudin explained it is impossible to know if the profile from the vaginal swabs is relevant. It would be “determinate” if and when that profile could be linked to a person.
Based on this record, petitioner's newly discovered DNA evidence lacks the required “decisive force and value” necessary to grant this petition. (§ 1473, subd. (b)(3)(A).) In contrast to In re Sagin, petitioner has not presented “powerful evidence” suggesting another perpetrator was responsible for this killing or the sexual assault. The totality of the evidence, including the new forensic information, still demonstrates it was petitioner who murdered Rene and sexually assaulted her. In re Sagin is factually distinguishable and it does not support petitioner's request for habeas relief.
We reject petitioner's assertions that, if the DNA evidence had been known at the time of trial, it is more likely at least one juror would have had a reasonable doubt as to his guilt. The autopsy was performed under conditions that strongly suggest contamination occurred. The experts agreed the detected profiles involve very low levels of DNA. The physiological source of petitioner's new DNA evidence is unknown. It is unknown if the redundant partial male profile detected on the vaginal and left labia majora swabs is associated with this crime. Petitioner has not shown his new evidence-viewed in relation to the strong and compelling evidence presented at trial-would have likely changed the outcome. The evidence elicited at trial greatly outweighs the new DNA evidence, which lacks substantial evidentiary strength. Under the sliding scale articulated in In re Sagin, the petition must be denied. The new DNA evidence does not have “such decisive force and value that it would have more likely than not changed the outcome at trial.” (§ 1473, subd. (b)(3)(A).) Accordingly, petitioner's various arguments are without merit, and we deny the petition.
VI. Petitioner's Claim Of Cumulative Error Is Without Merit.
Petitioner raises a claim of cumulative error. He asserts the trial evidence against him was weak while “numerous and substantial” legal errors occurred at trial. He references his 2001 petition for writ of habeas corpus filed in the superior court in which he previously raised 12 separate claims of ineffective assistance of counsel, a claim of jury misconduct, and he argued he was denied his right to effective appellate counsel when his trial counsel handled the appeal without raising his own ineffective assistance.
Petitioner notes his trial counsel was disbarred in 2005 from practicing law in California stemming from multiple acts of misconduct. Petitioner asserts that, in denying his 2001 petition, the superior court “went to great lengths to justify incompetent, rash and even sanctionable conduct by trial counsel as having been reasonable ‘trial strategy.' ” Petitioner faults the superior court for not considering the “history of discipline” his trial counsel incurred. Petitioner asserts his trial counsel “was no stranger to the commission of misconduct” when he provided representation in this murder trial, “and his actions should be scrutinized with the California State Bar findings in mind.” Petitioner argues his newly discovered DNA evidence has such decisive force and value that it would have had an impact at trial had it been presented. He contends each of the errors on its own is prejudicial. He maintains that the cumulative prejudicial effect requires reversal because no court could consider it harmless beyond a reasonable doubt.
Trial counsel's disbarment was not related with his representation of petitioner in this matter.
In contrast, respondent contends the claims involving ineffective assistance of counsel are procedurally barred as untimely. In the alternative, respondent argues these claims fail on their merits because they were rejected in 2001 by the superior court and in 2002 by our high court. Respondent maintains that petitioner is not innocent and there is no reasonable probability of a different outcome at trial.
We agree with respondent that petitioner's claims of ineffective assistance of counsel are procedurally barred. We also conclude his claim of cumulative error is meritless.
A. Petitioner's claims regarding alleged ineffective assistance of counsel are procedurally barred.
Petitioner's jury trial occurred in 1997. In 2001, he asserted numerous claims of ineffective assistance of counsel in a petition for writ of habeas corpus filed in the Kings County Superior Court. In 2002, the California Supreme Court summarily denied petitioner's original petition for writ of habeas corpus. This petition had raised the same issues which had been raised in the lower court.
In 2006, the United States District Court for the Eastern District of California denied petitioner's petition for writ of habeas corpus. The petition, which had been filed in 2003, had raised numerous claims of alleged ineffective assistance of counsel and jury misconduct similar to the claims that had been raised in the superior court and California Supreme Court petitions.
In the present petition, “good cause” has not been demonstrated for petitioner's delay in asserting his claims of ineffective assistance of counsel before this court. Accordingly, his claims involving alleged ineffective assistance of counsel are procedurally barred. We will not consider their merits. (See In re Reno (2012) 55 Cal.4th 428, 452 [“Untimely claims, or claims already presented to this court and resolved on the merits, are as a general matter barred from consideration.”].)
B. Cumulative error did not occur.
Our high court holds that “if a petitioner has a previously unraised claim based on newly discovered evidence that was not reasonably discoverable at the time of trial (or even the first habeas corpus petition), the cumulative prejudice flowing from that single error, when combined with the prejudice from other errors already raised and rejected on appeal for lack of individual prejudice, could rise to a level at which a court could conclude the petitioner was denied a fair trial, even if no single error required reversal.” (In re Reno, supra, 55 Cal.4th 428, 483.)
We reject petitioner's claim of cumulative error. His trial counsel's disbarment from the practice of law in California was in no way connected with his representation of petitioner in this matter. We decline to consider the misconduct from unrelated matters.
The record does not demonstrate that petitioner was denied a fair trial. (See In re Reno, supra, 55 Cal.4th at p. 483.) We have already concluded that petitioner's new DNA evidence lacks decisive force and value. That evidence would not have changed the outcome at trial. Petitioner's repeated claims of ineffective assistance are procedurally barred as untimely. His claim of cumulative error is without merit.
DISPOSITION
The order to show cause is discharged, and the petition for writ of habeas corpus is denied.
WE CONCUR: DETJEN, J., PEÑA, J.