Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDING; petition for writ of mandate. Peter P. Espinoza, Judge. Petition granted. L.A.S.C. No. BA088952
California Innocence Project, Justin Brooks, Jan Stigliz and Alexander Simpson for Petitioner.
No appearance for Respondent.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Mary Sanchez, Deputy Attorneys General for Real Party in Interest.
OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE
We hold that, where testing results would raise a reasonable probability that, in light of all the evidence, Petitioner’s verdict or sentence would have been more favorable if the results of deoxyribonucleic acid (“DNA”) testing had been available at the time of conviction, respondent court erred in denying the motion for such testing under Penal Code section 1405.
FACTS
Brown was convicted by jury of having committed violent sex crimes on three women victims, Deborah N., Nancy G., and Diane P. The jury convicted him of seven counts of forcible sex offenses with the infliction of great bodily injury; three counts of false imprisonment; and one count of robbery. The trial court sentenced Brown to an aggregate term of 73 years: a five-year upper term for one count of robbery, two years for false imprisonment (consisting of three consecutive eight-month terms), 56 years for the six sex offenses (consisting of seven full consecutive terms of eight years each), and 10 years for great bodily injury enhancements (consisting of two five-year terms).
Also known as “Shanae M.”
The evidence adduced at trial showed that, in 1993, Brown abducted three female pedestrians from a public street and took them to the same vacant school yard where he committed a variety of forcible, violent sexual acts upon them, inflicting great bodily injury.
Diane P., a self-identified alcoholic who had consumed two and one-half pints of vodka before the assault, was unable to identify Brown. Deborah N. identified Brown in a photographic “six pack,” in a live line-up, and at trial. Nancy G., whose preliminary hearing testimony was read to the jury, had identified Brown in a photographic “six-pack.”
On January 6, 1994, Los Angeles Police Officer William Graham, who had investigated the sexual assaults of which Brown was accused, took Brown to police headquarters for a polygraph examination. The examination was conducted by polygraph technician Ervin Youngblood and was tape recorded. Youngblood exhorted him that a confession could make things easier, stating that “[t]he worst thing a person can do when they come in here to talk to me is show absolutely no remorse.” At the beginning of the examination, Brown was asked personal information and was told that he had been identified by the victims of the sexual assaults. Brown stated that he had slept six hours the night before the examination, had not eaten much breakfast because he was not hungry, and that he had a nervous feeling in his stomach. After about 20 minutes of questioning, Brown was admonished of his rights as enunciated in Miranda v. Arizona (1966) 384 U.S. 436, which he waived.
As the examination continued, Brown denied knowledge of the sexual assaults. Youngblood reminded Brown that he had been identified by the victims and that blood had been found on his boots, which the police had seized upon Brown’s arrest (the third victim was savagely kicked by the perpetrator). Youngblood asked Brown about “strawberries” (women who exchange sex for drugs), and Brown denied having associated with such women. After additional questioning, Youngblood referred to the fact that the assaults had taken place on the grounds of a school and asked Brown if he “messed with any young children out there.” Brown denied having done so. Following further questioning, Brown admitted having had sex with the three victims, but claimed that the women consented to sex in exchange for drugs that he provided, although he had kicked one woman when she tried to steal his drugs. After Brown related some details of each instance, the interview was terminated.
At trial, Brown testified that he knew nothing of the assaults and had lied when he had confessed.
On appeal, Brown contended that the results of the polygraph test should not have been admitted into evidence because the technician had insidiously forced his admissions. Via opinion filed on July 9, 1996, we affirmed his conviction. (B092816.)
In 2003, Brown moved unsuccessfully for DNA testing pursuant to Penal Code section 1045. His motion was denied. We denied Brown’s petition for writ of mandate on August 20, 2003, and the California Supreme Court denied review on October 29, 2003.
All further statutory references are to the Penal Code.
In 2008, the California Supreme Court issued Richardson v. Superior Court (2008) 43 Cal.4th 1040. On April 16, 2009, aided by the California and Hawaii Innocence Projects and the Innocence Project, Inc., Brown again moved for DNA testing. Acknowledging that the victims’ rape kits had been destroyed, Brown sought DNA testing of various items of clothing worn by the victims upon which the perpetrator had ejaculated, urinated or defecated. Brown sought DNA testing of items stored in the Los Angeles Superior Court exhibit room: gray men’s shorts and men’s boxer underwear found at the school yard that matched the description that Nancy G. gave of the clothing worn by her attacker; Nancy G.’s underwear, jeans, tennis shoes, black sweatshirt, pink sweatshirt, and black belt; and Diane P.’s blue coat, blue dress, bra, tennis shoes, and a vodka bottle and bottle cap. Brown contended that identity had been an issue, because the victims misidentified him and his confession was not voluntary.
In support of his motion, Brown pointed out that the material collected from the victims, including rectal, oral, and vaginal swabs, were analyzed by the Los Angeles Police Department, but were determined to be too inconclusive to be introduced as evidence.
At the time that the biological material was analyzed, DNA testing was far less useful than it is now. The Analyzed Evidence Report for Nancy G. (who identified Brown in a photographic “six-pack”) shows that spermatozoa were detected in vagina swabs, slides and aspirate and in oral swabs. Because both Nancy G. and Brown were profiled as PGM Type 2-1 and PGM Subtype 2+1+, the laboratory could not draw a conclusion as to whether the semen found was Brown’s. The HLA DQ Alpha testing was also inconclusive as it showed a DNA profile of 1.2,4, a profile shared by both Nancy and Brown.
The laboratory found no spermatozoa on material taken from Diane P. (who did not identify Brown as her attacker).
The swabs taken from Deborah N. (who identified Brown as her attacker) provided a somewhat different story. The laboratory determined that the semen was of Subtype 2+, 2+1, or 2+1+; and Brown is profiled as Subtype 2+1+, as is 28 percent of the general population. The laboratory also tested spermatozoa fragments from Deborah N.’s underwear and found that the type was PGM Type 2-1. Brown is profiled as PGM Type 2-1, as is 21 percent of the general population.
Brown contended that new scientific analysis techniques, including atuosomal Short Tandem Repeat DNA testing and Y-STR testing, would establish not only that he was not the perpetrator, but, with the use of Combined DNA Index System (CODIS) and the National DNA Index System (NDIS)-national DNA databases maintained by the Federal Bureau of Investigation-the identity of the actual perpetrator.
Review of an order denying a motion for DNA testing is available only via writ petition. (§ 1405, subd. (j).)
DISCUSSION
Section 1405, enacted in 2000, provides for post-conviction DNA testing if identity was-or should have been-an issue at trial. The court must grant the motion “if it determines all of the following have been established: (1) The evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion. (2) The evidence to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced or altered in any material aspect. (3) The identity of the perpetrator of the crime was, or should have been, a significant issue in the case. (4) The convicted person has made a prima facie showing that the evidence sought to be tested is material to the issue of the convicted person’s identity as the perpetrator of... the crime... or enhancement allegation that resulted in the conviction or sentence. (5) The requested DNA testing results would raise a reasonable probability that, in light of all the evidence, the convicted person’s verdict or sentence would have been more favorable if the results of DNA testing had been available at the time of conviction.” (§ 1405, subd. (f).)
The movant must make a prima facie showing: “(a) A person who was convicted of a felony and is currently serving a term of imprisonment may make a written motion... for performance of forensic deoxyribonucleic acid (DNA) testing.
The applicable standard of review for rulings under section 1405 is abuse of discretion. (Richardson v. Superior Court, supra, 43 Cal.4th at p. 1043.) The purpose of section 1405 is “to provide defendants with a narrowly circumscribed opportunity to develop new evidence in preparation for a new trial motion based on newly discovered evidence.” (Id. at p. 1047.)
In Richardson v. Superior Court, supra, the Supreme Court set forth the standard that a petitioner must “demonstrate that ‘[t]he requested DNA testing results would raise a reasonable probability that, in light of all the evidence, [the] verdict or sentence would have been more favorable if the results of DNA testing had been available at the time of conviction.’ [Citation.]” (Id. at p. 1044.)
The Supreme Court went on to explain that “the moving defendant is required only to demonstrate that the DNA testing that he or she seeks would be relevant to the issue of identity, rather than dispositive of it. That is, the defendant is not required to show a favorable test would conclusively establish his or her innocence. It would be sufficient for the defendant to show that the identity of the perpetrator of, or accomplice to, the crime was a controverted issue as to which the results of DNA testing would be relevant evidence.
“This reading of section 1405, subdivision (f)(4) is supported by the legislative history of section 1405. The analysis for Senate Bill No. 1342 notes that the Attorney General preferred ‘that the standard for testing should be that it is dispositive, not merely relevant, on the question of innocence. The author believes that this proposed standard is too narrow and in those cases where it is not dispositive of the evidence a court can decide its relevancy.’ [Citation.]” (Richardson v. Superior Court, supra, 43 Cal.4th at p. 1049.)
The Supreme Court cautioned: “[I]t is important for the trial court to bear in mind that the question before it is whether the defendant is entitled to develop potentially exculpatory evidence and not whether he or she is entitled to some form of ultimate relief such as the granting of a petition for habeas corpus based on that evidence. As the Ninth Circuit observed in an analogous decision, ‘Obtaining post-conviction access to evidence is not habeas relief.’ [Citation.] Therefore, the trial court does not, and should not, decide whether, assuming a DNA test result favorable to the defendant, that evidence in and of itself would ultimately require some form of relief from the conviction.” (Id. at p. 1051.)
The People concede that Brown has demonstrated that the identity of the perpetrator is a “controverted issue as to which the results of DNA testing would be relevant.” Instead, the People assert that Brown has not demonstrated that the “testing results would raise a reasonable probability that, in light of all the evidence, the convicted person’s verdict or sentence would have been more favorable if the results of DNA testing had been available at the time of conviction.” To the contrary, all that Brown need show at this point is “that the identity of the perpetrator of... the crime was a controverted issue as to which the results of DNA testing would be relevant evidence.” He has done so.
ACCORDINGLY,
As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate “in the first instance.” (Code Civ. Proc., § 1088; Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1237–1238; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240–1241; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.) Opposition was requested and the parties were notified of the court’s intention to issue a peremptory writ. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
DISPOSITION
THEREFORE, in case No. BA088952, entitled People v. Joseph Lewis Brown, let a peremptory writ issue, commanding respondent superior court to vacate its order denying the motion of Petitioner for DNA testing pursuant to Penal Code section 1405, and to issue a new and different order granting same as to the exhibits listed in our opinion above and stored in the Los Angeles Superior Court.
MALLANO, P. J., CHANEY, J., JOHNSON, J.
“[¶]... [¶] (c)(1) The motion shall be verified by the convicted person under penalty of perjury and shall do all of the following: (A) Explain why the identity of the perpetrator was, or should have been, a significant issue in the case. (B) Explain, in light of all the evidence, how the requested DNA testing would raise a reasonable probability that the convicted person’s verdict or sentence would be more favorable if the results of DNA testing had been available at the time of conviction.” (§ 1405.)