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THE BETTY CLOER MURDER CASE --
IS IT JUST TOO OLD TO BRING TO TRIAL?
Revealed -- the main witness in the trial will be armed career criminal Stanley Gene Ellis, "DOE", a fact the District Attorney and Judge repressed until now
  by Kathryn Joanne Dixon © 2007

On December 3, 2007, Judge James Wagoner heard arguments from counsel in the El Dorado County Superior Court in Placerville.  At issue was whether or not the 36-year old cold case murder of Betty Marie Cloer is too old to go to trial.  Defendant Phillip Arthur Thompson was linked to the Cloer homicide by an alleged DNA match.  Following the hearing Judge James Wagoner took the issue under submission.

Perhaps he had been sobered by the ruling of the Third District Court of Appeals who, just that day, found that he erred in keeping the Coroner’s and Autopsy Reports sealed in the Betty Cloer murder case.  The appellate ruling highlighted the complete lack of a record of any evidence to support keeping the Reports sealed.  The Appellate Court stated: “Without evidence on which to base its findings, the trial court clearly erred in refusing to lift the gag order as to the public records.…”

On December 3 Deputy District Attorney Trish Kelliher argued against the Betty Marie Cloer murder case being too old to allow the defendant to have a due process fair trial.  To many observers in the courtroom it appeared the prosecution had presented insufficient evidence supporting its allegation that the age of the case, the missing reports and evidence and the many deceased witnesses would not deprive the defendant of a due process right to a fair trial.

When is a case just too old to go to trial?  There is no statute of limitations for the crime of murder, but there is a Constitutional Due Process limitation   If, prior to the district attorney’s accusing a person of a crime there is a delay, the district attorney should have sufficient justification.  If the district attorney merely delays without cause, and there is a destruction or loss of evidence, and if the defendant can show actual prejudice, the District Attorney must reasonably justify the delay in filing the charges.

The California Supreme Court decided on July 3, 2007 to review the case of People v. Boysen (2007 152 Cal. App. 4th 1409 (4th District, Orange County) in conjunction with its review of the case People v. Nelson  [2006] (142 Cal.App.4th 696, review granted Nov. 15, 2006, S147051, 3rd District, Sacramento).  The essential issue in both cases is: Was defendant denied his right to a speedy trial under the state and federal Constitutions, where there is significant delay, as in Boysen when the complaint was filed 26 years after the crime but only two months after DNA tests linked him to the crime? 

What was the length of the pre-accusation delay in the Thompson case?

One primary piece of evidence is a pair of yellow panties that the El Dorado District attorney had in its evidence room since sometime in July 1971.  Two decades later, in about 1991, Thompson gave a DNA sample to the California Department of Justice when he was a prisoner at the Sierra Conservation Camp.  That sample was supposedly transmitted to the Berkeley DNA lab; however it has now been determined that it is lost.  Anytime since 1991 that sample, had it existed, could have been used to test against the sample on the yellow panties.  Because the sample from Thompson is unaccounted for, this test was not done. 

In Nelson, the court commented about the failure to use a DNA data bank promptly:

The 26-year delay in prosecuting defendant was not the result of negligence, and it was not for the purpose of gaining an advantage over him. It occurred solely due to the limits of forensic technology at the time of the initial investigation, which resulted in insufficient evidence to identify defendant as a suspect. When forensic technology in the form of the DNA databank became available to identify him as a candidate for further investigation and testing, the prosecution proceeded with promptness. The justification for the delay outweighed defendant's minimal showing of prejudice.”

So, there may be an actual prejudice to Thompson in that the District Attorney and the State had the panties in 1991 and failed to see if the DNA in them matched that of any prisoner in the DNA data base.  Thompson was one such prisoner.  Of course, the prosecution admits that DNA is now lost.

In addition, the case against Thompson was not initiated according to the District Attorney, until the year 2002. Detective Hal Lamb suddenly decided to check the evidence room regarding the Cloer case in 2002 as part of the California Cold Hit Program. The alleged match to Thompson was made in September 2002.

However four years earlier there was a memo by the El Dorado Sheriff’s Department dated 5-19-98 that Thompson was identified as the suspect in the 1971 murder of Betty Cloer.  This one page document is entitled “El Dorado County Sheriff’s Department Property Management Section, Evidence Work Sheet”. It is dated 5/19/98. It has a stamp of the staff “Linda Street TD #196.”   It pertains to “Research” regarding Phillip Arthur Thompson and the “Victim, Cloer, Elizabeth.”  The violation listed on Exhibit A. is “187PC”.  It provides the date of arrest as “6/19/97.”

This document shows that a former Sheriff’s Department employee, Ms. Street, engaged in some research or activity pertaining to the investigation of the defendant for the alleged murder of Ms. Cloer four years before Det. Lamb stated in his search and arrest warrants that he commenced his investigation. This document indicates that the defendant was arrested on June 19, 1971 the day that Ms. Cloer’s body was discovered in Cameron Park for a violation of 1887 PC (murder). 

Hence, Thompson was not arrested for the first time as a result of Det. Lamb’s arrest warrant of October 27, 2003 which ordered to be executed by Judge Phimester.   Therefore, it was not until four years after the 5/19/98 memo and 31-years after the June 19, 1971 “arrest” that El Dorado County took action to follow up by arranging for DNA testing of the panties.

There is a direct implication that many years prior to the October 2002 arrest of Thompson, the El Dorado County Sheriff’s office and District Attorney and perhaps other agencies, were aware that Thompson was considered a suspect in the murder of Betty Cloer.  In spite of that knowledge, they declined to promptly charge him or to test his DNA sample in the data bank against any alleged DNA found on the yellow panties which were assumed to belong to Betty Cloer.

The California Attorney General’s office may also have been appraised of evidence that Thompson was or was not involved into the Cloer murder as early as 1975.  On pages 254 and 255 of the book Zodiac by Robert Graysmith [second edition, published by St. Martin’s press in  1986.]  On Page 254 Betty Cloer is cited by the author as a potential Zodiac murder victim.  On Page 255, the author states that CI & I [Criminal Identification and Investigation] listed 103 murder cases that had similar characteristics, including cases in Washington and Oregon.  “They were certain at the least fourteen of them involved the same man.”  The author states in the footnote on page 255:  “My source is a special report, “Unsolved Female Homicides, an Analysis of a Series of Related Murder in California and Western America,” marked Confidential and printed February 1975 by the Department of Justice, California.”

Thus, the record is that the pending case against Phillip Arthur Thompson may have been initiated, not as a result of a cold hit obtained by Det. Lamb in the year 2002 but rather by 1) the arrest of the defendant on June 19, 1971 as shown by the document retrieved from the Sheriff’s Department, an arrest concealed from the defendant, and/or 2) by some research or investigation of Thompson pertaining to the killing of Ms. Cloer which was ongoing on 5/19/98.  If such an investigation existed, the leads, evidence and paperwork and all discovery pertaining to that 1998 investigation  have been denied  to the defendant and may be lost, missing or destroyed, and/or  3)  by some lead or tip provided to the authorities which may be mentioned in the report entitled “Unsolved Female Homicides, an Analysis of a Series of Related Murder in California and Western America,”  marked Confidential and printed February 1975 by the Department of Justice, California,” and/or 4)  by DNA samples obtained from the defendant at the Sierra Conservation Camp in approximately 1991 which could have been used to attempt to make a match with the alleged DNA on the yellow panties.  The DNA samples obtained from the defendant are now missing and cannot be accounted for so the defendant can show that there was a very substantial delay by the District Attorney or by the Attorney General or law enforcement in bringing charges against him.

The crucial question is:  Did these delays cause actual prejudice to defendant Thompson?

The only physical evidence to be used by the DA against Thompson is that DNA was extracted from the yellow panties which matched that of Thompson in the DNA data base.  The panties were collected nearly 15 years away from the crime scene off Cambridge Road and Cameron Park Drives in an area known as “lover’s Lane”.   Chief Detective Mergen took them to Department of Justice forensic pathologist William "Jerry" Chisum on July 20, 1971, almost a month after the crime occurred.  At the time, a throughout investigation could have been done to show whether or not the panties belonged to Betty Cloer.   For example a search of her clothing at her apartment to find matching types of underwear or an inquiry of her roommates regarding the matter could have been conducted.  It was not.  At the time, a crusty area on the crotch panties tested positive for spermatozoa, however no match was ever made on the panties and no blood type ever found.  There was no recovery of sperm from the victim.  There was no evidence she was raped.  There was also blood in the crotch area of the panties, however, evidence showed the victim was not menstruating and had no injury in that area of her body which could have cause the blood stain.   Today, the panties are assumed to be those of the victim, per the analysis of Angelynne Moore, Department of Justice DNA analyst who allegedly connected the blood on the panties to her by a DNA analysis of the victim’s son and the son’s father and then her connecting the blood on bra which was worn by the victim to the blood on the panties.  To further complicate the matter, there was a hole and blood stain found on the buttocks area of the panties which is inconsistent with wounds found on the victim.  There is not a corresponding injury or mark on the victim.  Finally, the biological blood samples taken from the victim were not preserved, thus, the defense cannot determine whether those samples are consistent with samples collected from the panties.  It must be noted that a blood stain on one garment can be transferred to another, thus, were the panties mixed with other bloody garments or did someone transfer a stain by use of a solvent such as water.  In addition, given that Thompson’s DNA samples from Sierra Conversation Camp have gone missing, did someone obtain them and apply them to the panties? If so, did that individual have a vested interest in convicting Philip Arthur Thompson?

What other actual prejudice exists because of the passage of time?

During the 1971 autopsy, Dr. Jones colleted biological samples from the victim, including blood samples and a white milky material which tested  negative for spermatozoa.  According to Thompson’s defense counsel Dain Weiner:

Though reports on the matter were preserved, the biological evidence was destroyed or lost while in the possession of the El Dorado County Sheriffs Department.  This loss is highly prejudicial since the biological samples, if preserved, would have been available for testing with methods unavailable in 1971, methods that could have (1) determined what the substance was and (2) excluded defendant as a source.  These samples would have also shed light on the true culprit by offering comparative DNA profiles from the panties and the biological samples found in the victim.  The missing samples, therefore, prevent the defense from truly challenging the most crucial evidence in the case. 

Also at issue is a missing 1 cm by 2cm portion of the panties which is unaccounted for.  According to Mr. Chisum’s testimony during the preliminary hearing and confirmed with his 1971 reports, no sample was ever cut or altered from the panties by him.  If such a cut had been done, according to Mr. Chisum, a note would have been made in his report and a slide would have been created for preservation (PHT 65:13).  Of even greater concern is the presence of a green spongy material in the sample taken from the panties.  This green material was present in 2002 but never noted in 1971 by Mr. Chisum.  Because material is missing from the panties the defense is precluded from testing a well preserved sample of the panties which should have been preserved and which would have challenged the current green spongy sample used to identify Mr. Thompson.  Furthermore, there is a break in the chain of custody of the evidence from 1971 to 2002.  There are missing reports or documentation detailing what was done to the physical evidence.  For example, after Chisum’s examination of the coat, bra, and panties in 1971, he packaged those items in paper bags.  Between then and 2002, someone had repackaged the same items in a plastic bag (PHT 61:14; 373:24).    There are no reports documenting who removed, examined or tampered with this item.  Missing links in the chain of custody deny the defense the ability to explore issues of contamination and also limit the ability to pursue the origin of the green spongy matter observed on the panties.

What is known by the defense is that the original inventory of evidence completed by Lieutenant Duncan made no mention of the questioned panties.  They were first noted in Detective Patton’s report made on July 20, 1971 and were turned over to Mr. Chisum on that same day.  The panties were subsequently returned by Mr. Chisum to El Dorado County Sheriffs September 27, 1971 by United Parcel Services.  Mr. Chisum also states in his preliminary hearing testimony that he did not alter or cut the panties during his possession (PHT 65:13).  From that point on, no direct mention is made of these panties until Detective Lamb took them into his possession on May 2, 2002 and stored them for 13 days in his unlocked office filing cabinet (from 5-2-00 to 5-15-02).  When Detective Lamb retrieved the panties and bra evidence in 2002, they were packaged in a plastic bag.  Detective Lamb testified that during the preliminary hearing that the panties were kept in his file cabinet.  When that evidence was turned over by Detective Lamb and finally retested, it was noted that there was a small cut [on the panties], which could not be attributed to the previous tests done by Mr. Chisum.  The defense lacks any ability to show the location of those panties between Chisum’s examination in 1971 and Detective Lamb’s removal of them from the evidence room in 2002.  There is no explanation how they came to be cut, altered, and tested, or how they were transferred into different packaging.

In addition to the loss and destruction of physical evidence over the past 36 years, police reports are missing which could impeach witnesses and support a third party culpability defense – namely that other persons, including the prosecution’s key witness Stanley Gene Ellis whom the defense was court ordered to be referred to as “John Doe”, actually committed the crime.  Stanley Gene Ellis, a convicted career criminal is now serving a 188 month term in federal prison. The actual  identity of DOE can be revealed now, because Judge James Wagoner lifted the ban on using his name to the author of this article and the press on October 19, 2007.

 According to defense Counsel Dain Weiner:

The investigative procedure for Detective Mergen, described in his Conditional Exam, was to accumulate field notes taken from witnesses first hand and transcribe those notes into official reports.  These reports serve as a guide into the investigation, preserving findings for future situations such as the current case.  However, over the past 36 years, some of Detective Mergen’s most important police reports were not preserved by the prosecution.  The lack of consistency in preserving some reports and not others cannot be explained or justified by the prosecution.  In these reports, as gleaned from detective Mergen’s notes, is evidence which tends to prove the innocence of Philip Thompson. 

Among the missing reports include the investigation of prosecution witness John Doe, one of the last people to see the victim alive.  Mr. Doe now contends that he can identify the Defendant from a brief observation 36 years ago.  He gives a detailed account of his activities with Ms. Cloer on the night she disappeared.  He states that he provided a detailed statement to the investigating officer in 1971.  All such reports are missing, thus preventing the defense from impeaching Mr. Doe with prior inconsistent statements.

According to Det. Mergen’s testimony, he was able to eliminate as irrelevant the license plate numbers collected at the Texaco Gas Station where Karen Chappell claimed the victim first met her assailant.  The reports documenting Detective Mergen's follow up investigation eliminating these license plate numbers as belonging to suspect vehicles have been lost or destroyed.  In fact, DUK323, the plate the prosecution alleges belongs to Defendant, was ruled out by Mr. Mergen.  At the time, June 1971, as the prosecution has asserted, Mr. Thompson was under scrutiny due to his alleged involvement in the Strain case.  Given that Detective Enloe of the Sacramento Police Department, was involved in both Strain case and the present case, any connection between the license plate and the defendant would likely have been made or eliminated at the time.  This is especially so since Sacramento District Attorney Frank Cook was conducting his own investigation into Mr. Thompson and communicated regularly with Detective Enloe.  Since the reports dealing this fact are missing, defendant is left unable to prove this assertion. This information would have shown that the license plate in question was eliminated as the suspect vehicle. This information would be critical in rebutting the prosecution’s theory that this license number was somehow involved in the incident.

Furthermore, other investigation notes by detective Enloe (deceased) and Richer  (deceased) with the Sacramento Police Department, describe interviews with witnesses from Sam’s State Coach Inn, a restaurant in Cameron Park near where the victim’s body was found.  Thos interviews included Elmo Eck (deceased), Ralph Hoy (deceased), and Jack West (alive but with no recollection of the events described in the report.)  All witnesses described details about Dale Baker [author’s note: Mr. Baker was suspect as the American River Rapist at the time] consistently illuminating Baker as a suspect.  In fact Mr. Baker was a prime suspect in the murder of the victim.  The investigations revealed that Mr. Baker was a frequent customer of Sam’s Stagecoach Inn, which is how the witnesses came to know him.  All the witnesses mentioned confirmed that. Baker had claimed that he had found a new “love” and wished to leave his wife.  When the witnesses were shown a photo of the victim, all stated that this was the woman that Mr. Baker identified as the women he would leave his wife for.  Even more striking was the repeated assertion that Mr. Baker looked “exactly” like the American River Rapist who was at large at the time the Victim was murdered.  Lastly, there was no one at the Inn who could establish Mr. Baker’s whereabouts on the night of the murder.  This critical third party culpability evidence is now lost to the defense due to the pre-accusation delay in charging the defendant.  The inability of the defense to present this evidence denies a fair opportunity to pursue the history that it was Dale Baker, and not the defendant who murdered the victim.

There is also actual prejudice in the Thompson case because so many witnesses have died.  The El Dorado County District Attorney wants to admit evidence that Thompson engaged in bad acts, that is Evidence Code Section 1101(b) acts which were similar to that involving Cloer, in the cases of Ms. Strain and Ms. Montgomery.  Both Strain and Montgomery claimed they were sexually assaulted by Thompson.  Ms. Strain is now deceased and a preliminary hearing transcript has been admitted by Judge Wagoner to prove that Thompson assaulted her even though he was acquitted of the assault. No transcript exists of the Strain case because Thompson was found not guilty and therefore no appeal was necessary.  The defense attempt to locate defense witnesses from the 1971 Strain trail was unsuccessful.  At least ten of the original twelve jurors are deceased and the remaining two have not been located.  According to Weiner:

In light of the missing witnesses, it is virtually impossible to defend these charges that Mr. Thompson was acquitted of over 36 years ago.

 In the case of Montgomery, Thompson’s co-defendant James Aaron Allen stated to officials that Thompson was in no way involved with the crime.  Mr. Allen would have testified that his accomplice was Mr. John Andrews and that Mr. Thompson arrived 15 minutes after Allen, Andrews and Montgomery arrived at the alleged crime scene.  He would testify Thompson did not assault or witness the rape of Ms. Montgomery.  All sexual assault charges were dismissed regarding Thompson in this case.  Allen would have testified that the firearm used was a toy gun.  Court records specifically state Thompson “was NOT armed with a firearm”.  Allen statements were in files that were purged by defendant’s attorney Jerome Stanly, who represented Thompson and Allen.   Mr. Stanley who recorded Allen’s’ statements in an affidavit is now deceased, as is James Allen. 

Thus, Mr. Thompson cannot defend himself against charges pertaining to Ms. Montgomery and Ms. Strain – too many witnesses have died.

Thompson also shows actual prejudice due to the passing of time because it has caused him to lose the ability to provide exculpatory and alibi evidence that he was out of state at the time of the victim’s death.

Thompson contends that on June 18, 1971, the night of Mr. Cloer’s murder, defendant was not in California.  According to Darin Wiener, “He and his wife had traveled to New Orleans and Miami Beach Florida between June 18, 1971 and June 21, 1971.”  Thompson asserts that airline, car rental and telephone records would have shown Thompson was in Florida at the time of the homicide have been purged and no longer exist.  Hotel guest records from the Fontainebleau Hotel in Florida and the Royal Orleans Hotel in New Orleans no longer exist.  Dain Wiener writes:

The defense is also in the process of locating Luis Posada Carilles who could testify to the defendant’s presence in Miami during the questioned time period.  This witness was a former government employee whose whereabouts were closely monitored by  his sponsoring agency. If and when this information is located, it will substantiate Mr. Thompson’s alibi claim.  However, as of yet, Mr. Thompson had not been unable to locate this witness nor have records yet been made available under the Classified Information Procedures Act.

It should be noted that Carilles is a well known intelligence operative and that Philip Arthur Thompson worked for self-admitted intelligence “Dr.” John Philip Nichols, long time controller of the Cabazon Indian Reservation during a time of well publicized intelligence operations on this sovereign nation reservation.

It is also apparent that memories are lost – witnesses simply “can’t remember” and they must rely on prior reports to refresh their memories and some of these reports are non-existent.

There was even a delay in arresting Thompson after the alleged DNA hit was found.  In September 2002, an alleged DNA match was made regarding Thompson and the evidence of the yellow panties at the crime scene.  However, the arrest warrant was not issued until October 27, 2003, nearly a year and a half after the hit in the California data base.  From the time of his arrest until the day of his arraignment, Thompson was held incommunicado from an attorney for 75 days after his re-arrest, nearly two years from the time that the original hit had been made in September 2002.  During this time period, Thompson was deprived of time crucial to the preparation of his defense and to preserve evidence and witness statements.

What will Judge Wagoner decide?  How can the District Attorney rebut the record established by the defendant that he is actually prejudiced?  Can District Attorney Vern Pierson justify the delay in producing no records or hardly any record at all?  Will the District Attorney produce an actual list of all evidence that is missing in order to satisfy Brady requirements or will he provide something less than this and perhaps destroy his own case? 

The Supreme Court has succinctly described the responsibility for Brady compliance as resting exclusively with the prosecution, including the “duty to learn of any favorable evidence known to the other acting on the Government’s behalf in the case.”  See Kyles v Whitley, 514 U.S. 419, 437, cited with approval In Re Brown, supra, 17 Cal. 4th 873, 878-879.  An absence of incriminatory evidence is also evidence.  The scope of disclosure extends beyond the prosecutor’s case file, and it encompasses the duty to ascertain and divulge information favorable to the defense in the hands of allied agencies, including agencies involved in the investigation and preparation of the case.  See In Re Brown and  Smith v. Department of Corrections (10th Cir. 1995) 50 F.3d 801. 824.

The fact that funds were allotted to review “cold cases” such as those which permitted the employment of Det. Lamb to engage in his investigation of the Cloer case in 2002 does not at all address whether this was really a “cold” case at all.  Cold cases are those in which a suspect has not been focused on, or previously charged.  This is not a cold case.  It is a case that has been the subject of focused Government inquiry from 1971 through 1991 when DNA at the Sierra camp went missing or was used in some manner through May 19, 1998 when Ms. Stroot, an employee of the El Dorado County Sheriff’s Department did her “research” regarding the defendant and the death of Ms. Cloer.

Finally, the Supreme Court of California will review the pending Boysen and Nelson cases to determine whether the trial courts used the correct legal standard in balancing actual prejudice for delay against prosecution's justification to determine if the delay caused significant prejudice.  Judge Wagoner will have to keep his eye on the California Supreme Court’s decisions as they come down and the judge and will have to keep his eye on Brady considerations to make certain that the District Attorney has supplied all exculpatory evidence.  And yet, how can the prosecution provide sufficient Brady evidence when it cannot find its own evidence.  The prosecution cannot even prove the chain of custody of the DNA itself or the chain of custody of any other physical evidence over the past 36 years.   It is quite possible that this case is just too old to go to a trial which will be fair to the defendant when there was no reasonable justification for the long delay.

Kathryn Joanne Dixon © 12/22/07
If you have any information about this cold case
please contact me.

PO BOX 217
Fremont, CA 94537

 

 

RELEVANT INFORMATION  -- the text of the Boysen and Nelson cases which are to be reviewed by
the Supreme Court of California.

News Release

Release Number:  S.C. 42/07 Release Date:  October 19, 2007

Summary of Cases Accepted  
During the Week of October 15, 2007

[This news release is issued to inform the public and the press of cases that the Supreme Court has accepted and of their general subject matter.  The statement of the issue or issues in each case set out below does not necessarily reflect the view of the court, or define the specific issues that will be addressed by the court.] 

#07-423 People v. Boysen, S155417.  (D046763; 152 Cal.App.4th 1409; San Diego County Superior Court; SCN178931.)  Petition for review after the Court of Appeal affirmed an order dismissing a criminal prosecution.  The court ordered briefing deferred pending decision in People v. Nelson, S147051 (#06-127), which includes the following issue:  Was defendant denied his right to a speedy trial under the state and federal Constitutions, where the complaint was filed 26 years after the crime but only two months after DNA tests linked him to the crime? 

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Citation note:

People v. Nelson (2006) 142 Cal.App.4th 696, review granted Nov. 15, 2006, S147051.
Third District Court of Appeal, Sacramento

 

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REVIEW GRANTED People v. Boysen (2007)152 Cal.App.4th 1409 [-- Cal.Rptr.3d --]

[No. D046763. Fourth Dist., Div. One. Jul. 3, 2007.]

THE PEOPLE, Plaintiff and Appellant, v. DAVID ANDREW BOYSEN, Defendant and Respondent.

(Superior Court of San Diego County, No. SCN178931, Joan P. Weber, Judge.)

(Opinion by Benke, J., with McConnell, P. J., and Haller, J., concurring.)

COUNSEL

Bonnie M. Dumanis, District Attorney, Kim-Thoa Hoang, Catherine Stephenson, Craig E. Fisher and James E. Atkins, Deputy District Attorneys, for Plaintiff and Appellant.

Daniel G. Davis, Dennis A. Fischer and Steven Graff Levine, for Defendant and Respondent. [152 Cal.App.4th 1413]

OPINION

BENKE, J.-

In 1980 Elsie Boysen (Elsie) and her husband Robert Boysen (Robert) were murdered. In May 2004 their son, defendant David Andrew Boysen (David), was charged with the crimes. David sought and the trial court granted dismissal based on preaccusation delay. The People appeal, arguing the trial court applied an incorrect legal standard. They further contend that in any event there was insufficient evidence to support the trial court's decision, and the court abused its discretion in not reserving a decision on the motion until after trial.

We affirm. We conclude the trial court applied the correct legal standard which required it balance the actual prejudice to David against the prosecution's justification for the delay. We further conclude there was substantial evidence that the nearly 24-year delay in filing this case caused David significant prejudice and there exists no reasonable justification for that delay. Moreover, the court did not abuse its discretion in dismissing the case rather than proceeding with trial.

BACKGROUND

A. Crimes, Investigation and Prosecution

1. Crimes and Investigation 1980-1981

On Easter Sunday, April 6, 1980, Elsie and Robert left evening church services in La Jolla at approximately 9:30 p.m. to return to their Oceanside home. When Elsie did not appear at work the next morning, her coworkers asked neighbors William Borden and Gene Borden (together, the Bordens) to investigate. The Bordens knocked on Elsie and Robert's door but got no answer. They found all the doors and windows to the house locked except the window to the master bathroom at the rear of the residence. Gene Borden entered through that window and discovered Elsie and Robert's dead bodies in the house. Gene Borden left the house through the master bathroom window and called the police.

Oceanside Police Sergeant Robert Krause entered the victims' home by way of the open master bathroom window. In a hallway off the master bedroom he found the body of Elsie, and about 20 feet farther down the hall he found the body of Robert. Elsie was shot in the head with a 9mm semi-automatic handgun and was bludgeoned. Robert was shot twice in the head with a 9mm handgun.

Officers determined the door locks in the house were double keyed, i.e., a key was required to unlock the door from both the inside and the outside. There were no signs of a forced entry. There were no signs the house was [152 Cal.App.4th 1414] ransacked but the cords for all the telephones were pulled from the walls. Expended and unexpended 9mm cartridges were found around the bodies but no 9mm pistol was found.

David and his wife Linda Boysen (Linda) lived approximately 10 miles from his parents' house. On the morning of the discovery of the victims' bodies, the police contacted David and Linda and asked them to come to David's parents' house. After Linda identified the bodies, the two went to the Bordens' home across the street where the police questioned them. David told the police he and his wife were at their condominium the night of the murder. Linda agreed. David and Linda went through David's parents' house and told the police the only items missing were a 9mm handgun kept in a paper bag on a closet shelf in the master bedroom and their will.

The police contacted neighbors, including Marge Naples. Naples told the officers she believed that on the night of the murders, while she was sitting in her kitchen, she heard one gunshot at about 11:00 p.m. She later stated the time might have been 11:30 p.m. or 12:00 a.m. She then wrote the police a letter stating that after talking to her husband she believed she heard the shot at 11:15 p.m.

Gene Borden told the police she heard a small automobile engine at about 11:30 p.m. the night of the murders.

Six fingerprints were taken from the master bathroom wall below the window, one print was taken from the master bedroom windowsill, and two prints were taken from the doorway of the master bedroom. In April 1980 a police fingerprint examiner compared the fingerprints taken at the crime scene with those of the victims and Sergeant Krause. He concluded that the prints found on the doorway of the master bedroom were those of Robert. He was unable to match any of the remaining prints.

In September 1981 the same examiner compared the prints taken at the crime scene to those of Elsie, Robert, David and Linda. He was unable to match any of the prints.

The police were aware of and investigated several possible suspects to the murder, including David Hobbs. David and Linda told the police that Hobbs was a possible suspect because he was involved in an altercation with Elaine Jarvis, an employee of Robert's Christian bookstore, and he was bitter. The police apparently concluded in 1980 that Hobbs was not involved in the killing but there is no indication why they so concluded. [152 Cal.App.4th 1415]

In April 1980 the police received a tip from Melodie Rousseau that Richard Hagarman, a friend of her sister, had bragged about being involved in or knew who committed the murders of Elsie and Robert. Rousseau stated that Hagarman might have made the statement to appear important. A detective talked to Rousseau and her sister. They told the officers that Hagarman stated he had spoken with a man who claimed to have killed Elsie and Robert. The police tried to find Hagarman without success.

Friends of the victims believed they might have been killed by Mexican drug traffickers. Elsie and Robert were involved in Christian missionary work in Mexico and went there frequently in their truck to deliver supplies. It was speculated that drugs might have been placed in the truck by traffickers without the victims' knowledge. The truck was in for repair and was not at the victims' home the night of the murders, and some believed traffickers might have killed Elsie and Robert when they refused to tell them its location.

The drug traffickers theory was investigated by the police. Border crossing records showed several crossings by the victims' truck in 1979 but no crossings in 1980. There was evidence, however, that the victims were in Mexico in January 1980.

At the time of the investigation in 1980 and 1981, the police were aware that David was having serious financial problems.

By the end of 1981 David was the focus of the investigation into his parents' murders.

2. Investigation 1982

In 1982, after items linked to the victims were found in a dumpster in Rancho Bernardo, the police contacted Linda, who was now separated from but still married to David. In August 1982 the police conducted a lengthy interview of Linda. Contrary to her earlier statement that she and David were home together the night of the murders, she told officers she last saw David at about 6:00 p.m. that evening. At that time David was wearing his favorite clothes, overalls, a particular T-shirt and brown tennis shoes. She did not see him again that evening until he arrived home at 10:30 p.m. When he arrived home, he was no longer wearing the clothes he had left in but was wearing a bathing suit. Linda never saw the overalls, T-shirt or shoes again. She additionally related a series of observations of and communications with David that tended to incriminate him in the murder of his parents. [152 Cal.App.4th 1416]

Linda explained to the officers that about two weeks before the murders David learned that his parents had changed their will to leave their estate not to David and his sister but to their church. This made David very angry. The will was never found. At the time of the murders, Linda and David were experiencing serious financial problems.

Linda also told the officer that on March 2, 1980, she and David went to his parents' house while they were at church. David entered the house and told Linda to stay in the car. When David did not return, Linda went into the house. It appeared to her David was stealing money from a briefcase his parents carried to and from the bookstore. David was angry with her for coming in. To distract David and keep him from beating her, Linda suggested they make it look like the house had been burgled. They did so.

As had been the case from the beginning of the investigation, David refused to cooperate with the police.

3. Rejection of Prosecution

While there was circumstantial evidence suggesting David killed his parents, the police did not believe they had a solid case against him until their interview of Linda in 1982. The case was submitted to the district attorney. After thoroughly reviewing the matter, the district attorney's office declined to prosecute David. At the time of the hearing on the motion to dismiss in 2005, no copy of the form rejecting the police request for prosecution could be located. A police detective recalled that the basis for the rejection was that much of the evidence linking David to the murders consisted of privileged marital communications. There were other reasons for the rejection, but the detective could not recall what they were.

4. 2004 and the Cold Case Homicide Unit

In 2003 the San Diego District Attorney's Office created a Cold Case Homicide Unit and solicited cases that police departments believed were suitable for reinvestigation. In early 2004 the Oceanside Police Department suggested reinvestigation of the then 24-year-old murders of Elsie and Robert.

Linda, who divorced David in 1984, was reinterviewed and repeated and confirmed statements made in her 1982 interview incriminating David. However, she also reiterated that David was home at 10:30 p.m. David's sister and her husband were reinterviewed. They reconfirmed that the victims, [152 Cal.App.4th 1417] not long before their deaths, rewrote their will to leave their estate to a religious organization and not to their children.

In 2004 a reexamination was done of the fingerprints found at the crime scene using the known prints employed by the examiner in 1980. At the time of the original investigation, six fingerprints were taken from the master bathroom wall below the window, one print was taken from the master bedroom windowsill, and two prints were taken from the doorway of the master bedroom. In 1980 an examiner concluded the fingerprints found on the doorway of the master bedroom were those of Robert. The examiner, however, could match none of the remaining prints to the victims, to David, or to Gene Borden and Sergeant Krause, both of whom had entered the house through the master bathroom window the night of the murders.

The reexamination in 2004, which relied on the same techniques used in 1980, but which employed multi-examiner review procedures not used then, concluded that three of the six prints found on the bathroom wall by the entry window were those of Sergeant Krause. Because of their poor quality, the remaining three prints on that wall could not be matched, but the examiner believed based on their location the prints were probably made by Sergeant Krause. The reexamination agreed with the 1980 conclusion that the prints found on the master bedroom doorway were those of Robert. The reexamination also concluded that the fingerprint found on the master bedroom windowsill was made by Sergeant Krause.

Using better quality prints from Sergeant Krause and David, the examiner was able to identify an additional print from the master bathroom wall below the window as that of the sergeant. While the examiner believed that based on their location the remaining two prints from the bathroom wall were those of Sergeant Krause, he could not state they were or were not his prints.

A reinvestigation was also conducted concerning persons identified in 1980 as possible suspects. Hobbs was identified as a possible suspect. Both in 1980 and in 2004 the police were aware of two persons with the name David Hobbs. In August 2004 Rick Johnsen, who lived in Missouri, called the district attorney's office and stated that a friend, Bob Fischer who lived in Carlsbad, told him that Bill Warren said he sold a 9mm gun to a person named David Hobbs two weeks before the murders. When interviewed, Johnsen said Warren was concerned because he had sold Hobbs a 9mm gun, knew Hobbs had a tendency to violence and knew he disliked Elsie and Robert. Johnsen learned about the case being reopened from a newspaper article. [152 Cal.App.4th 1418]

Johnsen also stated that in 1990 he spoke with Fischer. Fischer told Johnsen that about two weeks before the murders, Hobbs said that he hated Elsie and Robert and was going to kill them. Fischer said he did not tell the police because he was afraid.

Fischer was interviewed. Fischer stated he knew Elsie and Robert. After the murders, he speculated that the Mexican Mafia killed them because they were so effective in converting persons to Christianity and this disrupted the recruitment of boys into the gang. Fischer also believed it was possible Elsie and Robert had offended Hobbs and he had murdered them. Fischer, however, never heard Hobbs make any threats to kill Elsie and Robert or heard anyone say they had heard Hobbs make such threats. Fischer stated he did not recall anyone named Warren and did not recall telling anyone that someone sold Hobbs a gun.

Warren was interviewed. He stated he did not sell Hobbs a gun and had no contact with Hobbs after the mid-1970's.

Hobbs's brother Richard was interviewed and stated Hobbs owned a 9mm handgun but he did not know when he acquired it. All of Hobbs's guns, including the 9mm, were destroyed in a fire in 1990. Richard knew of no reason why Hobbs would be angry with Elsie and Robert. Hobbs died in 1998.

Jarvis reported that she worked at Elsie and Robert's bookstore and attended their church in the late 1970's. During that time, Hobbs became obsessed with her, harassing her and breaking into her house. Jarvis contacted an attorney to get a restraining order against Hobbs but never obtained it. Jarvis assisted another person in getting a restraining order against Hobbs. Hobbs knew Robert and regularly attended Elsie and Robert's church. Jarvis was unaware of any threats made by Hobbs against Elsie and Robert. She believed Hobbs was dangerous.

In 2005 Hagarman, another possible suspect identified in 1980, was located in a Texas jail. When interviewed, he stated he knew nothing about the murders and had never said anything about them.

Naples, the victims' neighbor who reported hearing a gunshot at 11:15 p.m. the night of the murders, a time when Linda stated David was at home, died in 2001.

Gene Borden, the neighbor who reported hearing a small automobile engine at about 11:30 p.m. on the night of the murders and to whose home [152 Cal.App.4th 1419] David and Linda went immediately after leaving the crime scene, died in 1994.

5. Prosecution and Motion to Dismiss

In October 2004, following a complaint filed in May 2004, the San Diego District Attorney filed an information charging David with two counts of murder with special circumstances.

On April 15, 2005, David moved for dismissal of the prosecution based on prejudicial, unjustified preaccusation delay.

After a lengthy hearing, the trial court found David was prejudiced by the delay between the crimes and the commencement of prosecution. After balancing that prejudice against the justification for the delay offered by the prosecution, the trial court found the delay denied David's right of due process and dismissed the case.

DISCUSSION

In a series of arguments, the People contend the trial court erred in dismissing its prosecution of David. They argue that in finding a denial of due process, the court erred by balancing the prejudice resulting from preaccusation delay against the prosecution's claimed justification for that delay. They argue that a dismissal for prejudicial preaccusation delay is only proper when the delay was undertaken by the prosecution to gain a tactical advantage. They contend there is no evidence of such intent here. In the alternative, they argue that even if the court properly used the balancing test, it erred in finding a denial of due process. Finally, they argue the trial court abused its discretion when it refused to delay its ruling on preaccusation delay until the end of trial.

A. Due Process and Preaccusation Delay

The trial court properly applied a balancing test in deciding if David was denied due process because of preaccusation delay. It correctly required David first show actual prejudice and when he did so, the court examined the justification for delay offered by the district attorney.

[1] In People v. Catlin (2001) 26 Cal.4th 81 our Supreme Court outlined the general law applicable to claims that preaccusation delay resulted in a denial of due process. "Delay in prosecution [152 Cal.App.4th 1420] that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay [the balancing test]. (Scherling v. Superior Court (1978) 22 Cal.3d 493, 504-507; see also People v. Morris (1988) 46 Cal.3d 1, 37, disapproved on other grounds in In re Sassounian (1995) 9 Cal.4th 535, 543-544, fn. 5; People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 910-912.) A claim based upon the federal Constitution also requires a showing that the [152 Cal.App.4th 1421] delay was undertaken to gain a tactical advantage over the defendant [the tactical advantage test]. (See United States v. Lovasco (1977) 431 U.S. 783, 795 [97 S.Ct. 2044]; see also People v. Frazer (1999) 21 Cal.4th 737, 774.)" (Id. at p. 107.)

For a variety of reasons, the district attorney argues this statement by our Supreme Court misstates the law and that the trial court erred in not applying the tactical advantage test. She asserts that under both the federal and state Constitutions there is no denial of due process unless the delay was deliberately undertaken by the prosecution to gain tactical advantage over a defendant. She makes two arguments. First, she notes that in People v. Archerd (1970) 3 Cal.3d 615, 640, our Supreme Court stated that to amount to a denial of due process, delay "must be purposeful, oppressive, and even 'smack of deliberate obstruction on the part of the government.'" The district attorney argues that later California Supreme Court authority, stating that deliberate delay is not required for a finding of a denial of due process, is mere dicta and we are bound to follow Archerd. Second, the district attorney argues that whatever the position of the California Supreme Court, the right to truth-in-evidence provisions of "Proposition 8" (Cal. Const., art. I, § 28(d)) forecloses dismissal of a prosecution for preaccusation delay unless the delay is undertaken for tactical advantage.

Neither of the district attorney's arguments has merit.

1. State Case Law

[2] It is firmly established California law that a finding of a denial of due process based on preaccusation delay is not dependent on a finding that the delay was undertaken by the prosecution to disadvantage the defendant. It is true that in Archerd our Supreme Court stated that preaccusation delay must be purposeful and "even 'smack of deliberate obstruction . . . .'" (People v. Archerd, supra, 3 Cal.3d at p. 640.) Soon after, however, the Court of Appeal in Penney v. Superior Court (1972) 28 Cal.App.3d 941, 951-952, citing Jones v. Superior Court (1970) 3 Cal.3d 734, 741, footnote 1, held that negligent delay can violate due process. In People v. Hannon (1977) 19 Cal.3d 588, 610-611, footnote 12, the court, citing Penney, noted the tension between Archerd, Jones and Penney but found no need to resolve it.

In Scherling v. Superior Court (1978) 22 Cal.3d 493, 507, a unanimous court, citing Penney, addressed the issue. The court stated: "We do not intend to imply that only a deliberate delay by the prosecution for the purpose of prejudicing the defense may justify a conclusion that a defendant has been deprived of due process. The ultimate inquiry in determining a claim based upon due process is whether the defendant will be denied a fair trial. If such deprivation results from unjustified delay by the prosecution coupled with prejudice, it makes no difference whether the delay was deliberately designed to disadvantage the defendant, or whether it was caused by negligence of law enforcement agencies or the prosecution. In both situations, the defendant will be denied his right to a fair trial as a result of government conduct."

While an argument can be made to the contrary, fn. 1 it has been stated (see People v. Pellegrino (1978) 86 Cal.App.3d 776, 780), and the People assert, that this language in Scherling is dicta. What is significant, however, for our purposes is that in People v. Catlin, supra, 26 Cal.4th at page 107, the court differentiated federal and state law on preaccusation delay by noting that under federal due process law, but not California law, a showing was required that delay was undertaken to gain a tactical advantage over the defendant.

Since Scherling, the Courts of Appeal have uniformly applied a balancing test, and conclude a determination of deliberate delay is not required under [152 Cal.App.4th 1422] California law for a finding that a preaccusation delay resulted in a denial of due process. (See People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911; People v. Hartman (1985) 170 Cal.App.3d 572, 581; People v. Pellegrino, supra, 86 Cal.App.3d at p. 780.)

[3] Not only do we conclude that the balancing test is the law in California, we also conclude that when combined with a high regard for prosecutorial discretion and judgment, it is the better test. The decision when to proceed with a prosecution is exclusively one for the executive branch of government. It can be a complex question and prosecutors have great discretion in deciding when and if to proceed. Simple wisdom and a due regard for the separation of powers doctrine allows for no other rule. Nonetheless, due process is ultimately tied to the fundamental conceptions of justice that lie at the base of our civil and political institutions and which define the community's sense of fair play and decency. (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 914.) Our sense of fair play is properly offended when, with little or no justification, the government waits decades to bring a prosecution and that delay has demonstrably placed the defense at a profound and perhaps fatal disadvantage. It is inconceivable that even the total loss of a defendant's ability to defend is constitutionally irrelevant unless it can be shown that the delay was undertaken to gain tactical advantage. This is especially true in cases, like the present one, in which the reasons for the prosecution's delay cannot be fully reconstructed by either party.

2. Article I, Section 28(d)

The district attorney argues in the alternative that this body of state law is meaningless. She argues that the right to truth-in-evidence provisions of article I, section 28(d) of the California Constitution does not allow dismissal of a prosecution based on preaccusation delay unless that delay was deliberate and designed to create an advantage over the defendant. [152 Cal.App.4th 1423]

[4] In relevant part section 28(d) states, with exceptions not here applicable, "relevant evidence shall not be excluded in any criminal proceeding." The district attorney argues that the dismissal of a prosecution, apparently for whatever reason, is the ultimate exclusion of evidence and, thus, is controlled by section 28(d). The application of that provision to the issue of preaccusation delay would mean that dismissal of a criminal prosecution for such delay could only be ordered if the delay was violative of the federal Constitution, i.e., if the delay was prejudicial and was undertaken to disadvantage the defendant.

The first answer to the district attorney's argument is that section 28 is applicable only to crimes committed after its effective date of June 9, 1982. (People v. Smith (1983) 34 Cal.3d 251, 258.) The crimes here were committed in 1980, and whatever section 28(d)'s effect on due process under the California Constitution, it does not affect this case. fn. 2

Even if article I, section 28(d), required we apply federal constitutional law in this context, there is no controlling federal law on the subject. Two United States Supreme Court cases, United States v. Marion (1971) 404 U.S. 307 [92 S.Ct. 455] and United States v. Lovasco (1977) 431 U.S. 783 [97 S.Ct. 2044], have considered the question of preaccusation delay, and while both cases note the prosecutorial concession that deliberate delay to disadvantage a defendant would constitute a denial of due process, neither holds that a showing of deliberate delay is required before a prosecution may be dismissed. (United States v. Marion, supra, 404 U.S. at pp. 324-325; United States v. Lovasco, supra, 431 U.S. at pp. 795-797; see United States v. Gross (2001) 165 F.Supp.2d 372, 378-380.) It is one thing to conclude, as those cases do, that delay for tactical advantage constitutes a violation of due process, it is another to conclude delay for tactical advantage must be shown before a due process violation may be found to exist. We observe in this regard that Marion and Lovasco are entirely consistent with California's balancing test. Once the defendant demonstrates actual prejudice, the prosecution is called upon to present its justification for the delay. If the delay was to gain a tactical advantage then, as Marion and Lovasco instruct, there can be no justification and the balance necessarily tips to a conclusion there was a denial of due process. [152 Cal.App.4th 1424]

We observe as well that federal appellate cases are not uniform in their interpretation of Marion and Lovasco. In 1988 Justice White, in a dissent to a denial of certiorari, noted a split in the federal circuits on the correct test for determining if preaccusation delay amounts to a violation of due process. (Hoo v. United States (1988) 484 U.S. 1035, 1035-1036.) That split still exists. While the majority of federal circuits employ the tactical advantage test, three circuits apply the balancing test. (U. S. v. Barken (9th Cir. 2005) 412 F.3d 1131; U. S. v. Henderson (7th Cir. 2003) 337 F.3d 914, 920; Jones v. Angelone (4th Cir. 1996) 94 F.3d 900, 905.) fn. 3

A similar split exists in state courts. While a majority applies the tactical advantage test, many apply the balancing test. (See, e.g., State v. Knickerbocker (N.H. Sup. Ct. 2005) 880 A.2d 419, 421-424; State v. Salavea (Wash. Sup. Ct. 2004) 86 P.3d 125, 127; State v. Wright (Mont. Sup. Ct. 2000) 17 P.3d 982, 986-987; Scott v. State (Fla. Sup. Ct. 1991) 581 So.2d 887, 891-892; State v. English (Haw. Sup. Ct. 1979) 594 P.2d 1069, 1073, fn. 8.) fn. 4

Even if, therefore, article I, section 28(d), applies to the dismissal of prosecutions for preaccusation delay, there is no controlling federal authority [152 Cal.App.4th 1425] limiting such dismissal to situations in which the delay was deliberate and designed to disadvantage defendants; and there is no requirement, therefore, that we limit dismissal to those cases in which delay was undertaken to disadvantage the defendant. Since there is no controlling federal law on the subject, the courts of this state are free to independently interpret the United States Constitution. (See In re Tyrell J. (1994) 8 Cal.4th 68, 79.) Our state Supreme Court and our Courts of Appeal have done so, and have chosen to apply the balancing test.

B. Substantial Evidence

The district attorney argues that even assuming the trial court applied the correct test, the evidence was insufficient to support its dismissal of the case.

1. Law

[5] Under the balancing test, when a defendant demonstrates prejudice, the prosecution must offer justification for the delay. Once the prosecution does so, the trial court balances the harm done the defendant against the justification. (People v. Catlin, supra, 26 Cal.4th at p. 107.) In a broad sense the trial court's task "is to determine whether precharging delay violates the fundamental conceptions of justice which lie at the base of our civil and political institutions and which define the community's sense of fair play and decency." (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 914, citing United States v. Lovasco, supra, 431 U.S. at pp. 790-796.)

In balancing prejudice and justification, it is important to remember that prosecutors are under no obligation to file charges as soon as probable cause exists but before they are satisfied that guilt can be proved beyond a reasonable doubt or before the resources are reasonably available to mount an effective prosecution. Any other rule "would subordinate the goal of orderly expedition to that of mere speed." (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 915.)

The balancing task is a delicate one, "a minimal showing of prejudice may require dismissal if the proffered justification for delay is insubstantial. [Likewise], the more reasonable the delay, the more prejudice the defense would have to show to require dismissal." (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 915.)

The question of whether preaccusation delay is unreasonable and prejudicial is a question of fact. If the trial court concludes the delay denied the defendant due process, the remedy is dismissal of the charge. Our role is [152 Cal.App.4th 1426] limited. The trial court's ruling is upheld on appeal if supported by substantial evidence. (People v. Mitchell (1972) 8 Cal.3d 164, 167.)

2. Discussion

We conclude there is substantial evidence supporting the trial court's dismissal based on preaccusation delay of David's prosecution.

[6] It is certainly the case that there is no statute of limitations on murder. (Pen. Code, § 799.) This alone, however, has no effect on the issue of a denial of due process arising from prejudicial delay in bringing accusations. The murders in this case occurred almost a quarter of a century before David was charged with them. The passage of time fades memories, sees the death of important witnesses and often results in the loss of physical evidence. All of those occurred here.

We review the issues of prejudice and justification.

a. Prejudice

The trial court concluded David presented "extensive evidence" of prejudice caused by preaccusation delay. The court opined it would be difficult to find a case that would not be prejudiced by such a lengthy delay. It concluded the most important evidence lost was that dealing with a possible defense of alibi. We agree.

Linda's statements to the police about David's comments and behavior around the time of the murders were highly incriminating. One fact she related, however, and from which she never retreated in any interview, was potentially exonerating. Linda stated that on the night of the murders David returned home at 10:30 p.m. Naples, the victims' neighbor, told the police that on the night of the murders, while she was sitting in her kitchen, she heard a gunshot sometime between 11:15 p.m. and 12:00 a.m.

Naples would seemingly have been an excellent witness for the defense. She was the former tax collector for the City of Long Beach, a pilot, wrote books on cats and was a respected cat show judge. Naples, however, died in 2001. Not only did her death deny the defense her statement about hearing a shot the night of the murders, it denied the defense the ability to develop additional evidence concerning what she heard and the particular circumstances under which she heard it. The police investigation of Naples was not extensive. [152 Cal.App.4th 1427]

The People suggest there is no serious problem with Naples's testimony since they would be willing to forego a hearsay objection to any statements made by her in 1980. As the trial court pointed out, however, the prosecution's offer to allow Naples's cold statement to be admitted did not foreclose the prosecution from attempting to impeach her. Because Naples was dead, it would be impossible for the defense to develop additional supporting evidence from her and to rehabilitate their witness. While an offer to allow a hearsay statement from a witness might be a meaningful concession when the evidence is merely supportive or foundational or when not a matter of serious contention, it is not meaningful when the evidence is crucial to the case and highly contested.

The trial court also noted that Gene Borden, the neighbor who entered Elsie and Robert's house and found the bodies, told police she heard the engine of a small car at 11:30 p.m. the night of the murders. While that fact was not as useful to the defense as Naples's statement concerning hearing a shot, it was nonetheless useful. Gene Borden died in 1994. Not only did her death mean that the defense could not interview her concerning the engine sound, it also meant the defense could not question her concerning her observations as the first person at the murder scene. In any event, were she still alive it is questionable how useful a defense interview of her would be separated from the events by over two decades.

The trial court also noted that in other respects the passage of time affected David's ability to offer an alibi defense. On the night of their deaths, Elsie and Robert attended Easter evening church services in La Jolla, a considerable distance from their home in Oceanside. There was some evidence that while the service ended at 8:30 p.m., they did not leave for home until 9:30 p.m. Because Linda stated David was home at 10:30 p.m., establishing a timeline for the victims the evening of their deaths and determining driving times from the church to their home and from their home to David's condominium was of great importance. Both the prosecution and the defense in 2004 determined driving distances and times. While those determinations are undoubtedly useful to understanding events in 1980, they cannot be as accurate as time and distance estimates that could have been made in 1980. Of greater importance is that it is now impossible to create a more accurate estimate for when Elsie and Robert left La Jolla and to determine whether they stopped on their way home.

The trial court also concluded preaccusation delay was prejudicial with regard to third party culpability evidence. In 1980 and 1981 there was evidence that persons other than David might have murdered the victims or had an interest in their deaths. While some suggestions of third party culpability in 1980 and 1981 were mere speculation, e.g., the possibility they [152 Cal.App.4th 1428] were killed by drug traffickers, other evidence was more credible and might have been meaningfully investigated by the defense.

As the trial court noted, the most important third party culpability evidence concerned Hobbs. There was evidence that he knew and disliked the victims perhaps because of their connection with a woman who worked at their bookstore, and with whom Hobbs had a difficult relationship. Hobbs at least at some time owned a 9mm handgun and had a history of violence. Hobbs died in 1994. The inability because of the passage of time to explore Hobbs's possible involvement in the murder of Elsie and Robert was prejudicial to the defense.

The trial court also concluded that the failure of the police in 1980 to fully investigate the murders, document the crime scene, conduct forensic tests and retain important physical evidence, e.g., an open brief case found at the scene, all made investigation of the crime and the development of a defense in 2004 very difficult.

b. Justification for Delay

The trial court noted that while all three copies of the 1982 form rejecting prosecution of David are now missing, it appears at least a major basis for that rejection was the effect of the marital communication privilege on Linda's crucial testimony. David, as holder of the martial communications privilege, could have foreclosed Linda testifying in 1982 and 2004 concerning confidential communications made by him to her during their marriage. (Evid. Code, § 980.) It is true that part of the incriminating nature of Linda's testimony was based on admissible observations made by her before and after the murders. (People v. Cleveland (2004) 32 Cal.4th 704, 743.) However, the observations were known to the prosecution in 1982 and did not change between 1982 and 2004.

The district attorney argues that what changed in the 22 years since its decision not to prosecute was new fingerprint and forensic evidence. Most of that evidence, however, provided no justification for the delay in David's prosecution. While the People did generate new forensic evidence concerning the bullets and cartridges found at the scene and from blood splatter analysis, that evidence merely illuminated how the murders occurred and did not point to David as the killer.

The only real change from 1982 that tended to assist in preparing the prosecution's case was the reexamination of fingerprints found at the scene. [152 Cal.App.4th 1429] In 1982 the fingerprint examination was almost totally inconclusive and left open the possibility, also useful to the defense, that someone other than Gene Borden and Sergeant Krause entered Elsie and Robert's home through the master bathroom window and left their fingerprints at the scene. When the fingerprints were reexamined in 2004, using the same techniques used in 1980 but with more extensive review and with better known prints from Sergeant Krause, most but not all the latent prints could be matched with those of the sergeant. Additionally, the examiner was willing to opine that given the position of the unmatched prints they also were those of the sergeant. This is useful but does not in the least foreclose the possibility that someone else, perhaps gloved, also came through the master bathroom widow that night.

3. Conclusion

[7] There is no doubt David was prejudiced by the 24-year delay between the murders and the commencement of the prosecution. The district attorney's claims of justification for that delay are unconvincing. In 1982 the district attorney's office, faced with a case they might or might not have been able to prove, made a decision not to prosecute David. That decision was within the prosecution's prerogative. We attribute no bad faith to the district attorney; however, it is clear what has changed in the past 24 years is not the evidence but the willingness to proceed.

There is substantial evidence supporting the trial court's decision to dismiss the prosecution against David based on preaccusation delay.

B. Timing of Ruling

The district attorney argues the trial court abused its discretion when it refused to delay its ruling on preaccusation delay until after trial.

[8] It is within the discretion of the trial court to rule on a motion to dismiss based on preaccusation delay before, during or after trial. (People v. Pinedo (2005) 128 Cal.App.4th 968, 975; People v. Abraham (1986) 185 Cal.App.3d 1221, 1225-1226.) As to granting a dismissal before trial, the court in Pinedo stated: "[W]here the loss of evidence is easily quantified and there is no need for further delay, David should be able to obtain a dismissal at the earliest possible time to avoid any further oppression and harassment beyond that he has already suffered by an unjustifiable delay." (People v. Pinedo, supra, 28 Cal.App.4th at p. 975.) [152 Cal.App.4th 1430]

The delay in this case was lengthy. The prejudice to David arose from the death of important witnesses, the irreparable fading of memory and the complete inability to pursue important lines of investigation. The trial court could reasonably conclude that nothing would be gained by delaying its ruling on the motion to dismiss until the end of a lengthy and expensive trial. The trial court acted properly in dismissing the prosecution of David before trial.

The order dismissing the case is affirmed.

McConnell, P. J., and Haller, J., concurred.

­FN 1. In considering whether a test of due process or statutory speedy trial rights controls preaccusation delay, People v . Scherling reaffirms Archerd's application of the due process test, and, citing People v. Jones, supra, 3 Cal.3d at page 741, footnote 1, and People v. Bradford (1976) 17 Cal.3d 8, 18-19, states: "But regardless . . . , the test is the same, i.e., any prejudice to the defendant resulting from the delay must be weighed against justification for the delay." (Scherling v. Superior Court, supra, 22 Cal.3d at p. 505, fn. omitted.)

­FN 2. The People urge we should nonetheless apply section 28, subdivision (d). Even if we were to apply the section to pre-Proposition 8 crimes, we are not as confident that the section encompasses a complete dismissal of a case based on violation of due process. The literal language of section 28 assumes its application to evidence introduced at a criminal proceeding. Evidence Code section 140 defines "evidence" as "testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact." Nothing in this definition suggests "evidence" includes "dismissals." Nothing in section 28, subdivision (d), suggests Proposition 8 was intended to require that federal dismissal rules apply in California.

Moreover, we note the section was enacted by Proposition 8, an initiative. Initiatives may amend but not revise the Constitution. (Cal. Const., art. XVIII.) If section 28(d) is as broad as the district attorney suggests, then an argument can be made that, given its breadth and its effect on the judicial interpretation of our state Constitution, it is a revision and unconstitutional. (See, generally, Raven v. Deukmejian (1990) 52 Cal.3d 336, 349-355.)

­FN 3. In his treatise, Prosecutorial Misconduct, Professor Gershman says this, "Most courts have bypassed the Supreme Court's invitation [in Marion and Lavasco] to assess the propriety of reasons for the delay. Instead, they have taken the Court's example of a tactical delay as a prerequisite for finding a due process violation and have routinely rejected due process claims when there is no showing of an intentional prosecutorial delay to gain a tactical advantage. Arguably, a tactical delay could be taken as the minimum standard for a due process violation, as representing a flagrant example of prosecutorial misconduct. Although a delay caused by an intent to harass a defendant or gain a tactical advantage over him would violate due process, the Supreme Court did not rule out the possibility that other unconstitutional reasons might also exist." (Gershman, Prosecutorial Misconduct (2d ed.) 8:10, fns. omitted.)

­FN 4. New York applies its own unique test that does not require prejudice to the accused. In State v. Lesiuk (N.Y. 1993) 617 N.E.2d 1047, 1050, the court stated: "We have consistently held that " 'unreasonable delay in prosecuting a defendant constitutes a denial of due process of law' " (People v Singer, 44 N.Y.2d 241, 253; People v Staley, 41 N.Y.2d 789, 791; see also, N.Y. Const., art. I, § 6). An unjustifiable delay in commencing the prosecution may require dismissal even though no actual prejudice to the defendant is shown (People v Singer, 44 N.Y.2d, at 253-254, supra). Where there has been a prolonged delay, we impose a burden on the prosecution to establish good cause (see, People v Singer, 44 N.Y.2d, at 254, supra). We recognize that there is a need to investigate to discover the offender, to eliminate unfounded charges, and to gather sufficient evidence prior to the commencement of a prosecution (see, id.). Thus, we stated that 'a determination made in good faith to defer commencement of the prosecution for further investigation or for other sufficient reasons, will not deprive the defendant of due process of law even though the delay may cause some prejudice to the defense' (id., at 254)."

REVIEW GRANTED People v. Nelson (2006)142 Cal.App.4th 696 [-- Cal.Rptr.3d --]

[No. C047366. Third Dist. Aug. 31, 2006.]

THE PEOPLE, Plaintiff and Respondent, v. DENNIS LOUIS NELSON, Defendant and Appellant.

[Opinion certified for partial publication. fn. * ]

(Superior Court of Sacramento County, No. 02F06021, Gary S. Mullen, Judge.)

(Opinion by Scotland, P.J., with Hull, J., and Cantil-Sakauye, J., concurring.)

COUNSEL

Cara DeVito, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent. [142 Cal.App.4th 700]

OPINION

SCOTLAND, P.J.-

In this case, we confront issues arising from the use of the state's convicted offender deoxyribonucleic acid (DNA) databank to solve a murder that occurred many years earlier. The victim was abducted, raped, and murdered in 1976. In 2002, a DNA profile derived from crime scene evidence was searched through the DNA databank. Defendant Dennis Louis Nelson was identified as a potential candidate. In further testing, it was determined that his DNA profile matched that of the evidentiary samples. Convicted of first degree felony murder, defendant appeals.

In the published parts of this opinion, we reject defendant's claims that (1) the delay between the date of the crime and the filing of a complaint charging him with the murder violated his right to due process of law, and (2) in light of the holding in People v. Kelly (1976) 17 Cal.3d 24 (hereafter Kelly), the DNA evidence should not have been presented to the jury because there is no general scientific acceptance of a statistical means of explaining the results of a DNA comparison when a DNA databank is used to identify a potential candidate. As we will explain, those claims of error lack merit.

The 26-year delay in prosecuting defendant was not the result of negligence, and it was not for the purpose of gaining an advantage over him. It occurred solely due to the limits of forensic technology at the time of the initial investigation, which resulted in insufficient evidence to identify defendant as a suspect. When forensic technology in the form of the DNA databank became available to identify him as a candidate for further investigation and testing, the prosecution proceeded with promptness. The justification for the delay outweighed defendant's minimal showing of prejudice.

Like the use of a fingerprint database search to identify potential candidates as suspects, a DNA databank search does not implicate the concerns addressed in Kelly. The DNA databank search merely identified defendant as a possible candidate as the murderer; it was not the basis for declaring that [142 Cal.App.4th 701] his DNA matched DNA on the evidentiary samples. The latter determination was made based upon further, complete testing utilizing scientific techniques found to be reliable and admissible under the Kelly test.

In the unpublished parts of this opinion, we conclude that defendant's other contentions lack merit. Thus, we shall affirm the judgment.

FACTS

In 1976, Ollie George was a 19-year old college student who lived with her parents. On the late afternoon of February 23, 1976, she borrowed a car from her brother, Delbert, in order to go to the store to buy some nylons. fn. 1 Ollie went to a shopping center where there were a Safeway, a Pay 'n Save, and a nearby McDonald's restaurant. At about 5:30 p.m., Ollie telephoned her mother and reported that the car would not start. Delbert's car, a Pontiac GTO, would often flood; the remedy was to wait for a while and try again, although it was unclear whether Ollie knew that. Ollie's mother asked her to pick up some grocery items while she waited. Dan Kemp worked at the nearby McDonald's and recognized Ollie from prior visits to the restaurant. He reported that Ollie visited the restaurant at some time after he started his shift at 5:00 p.m.

Delbert's girlfriend, Beata Garner, went to the George home at about 5:30 p.m. Ollie's sister, Laurenda, wanted to go to the shopping center to meet Ollie, so Garner drove her there. They located Delbert's car. The door was unlocked and the keys were in the ignition. The car contained grocery items, nylons, Ollie's purse, and a partially eaten McDonald's hamburger. Ollie was missing. When Ollie could not be located, the family notified the city police department.

Ollie's disappearance was reported in the newspaper and on television. Upon learning of the disappearance, Ardis Hayes contacted the police department. He reported that he had been at the shopping center at the time it was just beginning to get dark. As he was on his way into the store, he saw Ollie in a faded blue or gray Oldsmobile F85. The hood was open and an African-American man appeared to be working on the engine.

Ruth Jones, who was acquainted with Ollie, also reported seeing her at the shopping center. Jones said that she and her children went to the shopping center in the evening, around 5:00 or 6:00 p.m., and as they were leaving they saw Ollie in the driver's seat of a blue car. The hood was open and a man appeared to be working on the engine. Jones first thought the man was [142 Cal.App.4th 702] Caucasian, but when he stood up she saw that he was an African-American. The man was wearing a "watch cap."

Ollie's body was found in an unincorporated area of the county on February 25, 1976. She had been brutally raped and drowned in mud. At that point, the county sheriff's department took over the investigation.

Within a couple of weeks, Hayes saw what he believed to be the same car in which he had seen Ollie around the time of her disappearance. Hayes took down the license number of the car and reported it to the police department, which relayed the information to the sheriff's department. The car Hayes saw on that occasion was defendant's faded blue Oldsmobile F85.

In early March 1976, sheriff's detectives encountered defendant and his car in an apartment parking lot. Defendant was wearing a watch cap. The detectives spoke with him and took photographs of him and his car. Defendant told the detectives his car was not running properly; it would cut off when he stopped, and he would have to use jumper cables to start it.

Defendant agreed to go to the sheriff's department for an interview. When asked to account for his whereabouts at the time of Ollie's disappearance, defendant gave a somewhat confused and conflicting account about visiting his mother-in-law's house, his grandmother's house, and his estranged wife's house, and about giving a ride to a person whom he knew as Eloise. Defendant said he believed that his sister-in-law knew Ollie. He did not say that he knew Ollie, had been in contact with her, or had been intimate with her.

When defendant's mother-in-law was interviewed, she told detectives that while she could not be specific about the time, defendant was definitely at her house sometime between 4:00 and 6:00 p.m. on February 23, 1976. However, she also said that defendant never stayed at her house very long.

During the investigation, detectives received hundreds of tips, including the reports of Hayes and Jones. Some of those providing information reported seeing Ollie, or at least an African-American female, with a Caucasian male or males. Detectives interviewed over 180 potential witnesses and followed other leads. However, they were unable to develop sufficient evidence to focus the investigation upon any person. Eventually, the matter became a cold case, that is, unsolved but inactive.

Due to his convictions for robbery in 1977 and felony petty theft in 1984, defendant was incarcerated for a significant portion of the decade between the [142 Cal.App.4th 703] murder of Ollie and incidents in 1986 that led to defendant's identification as the person who raped and killed Ollie.

In 1986, defendant abducted a woman from a parking lot, drove her car while holding her hostage, and took her to an isolated location where he committed violent sexual offenses against her. He said that he should kill her but relented when she convinced him she would not identify him. A week later, defendant abducted another woman from a parking lot. This incident began exactly as had the abduction a week earlier. The second victim became fearful and tried to escape. This led to a struggle during which defendant crashed the car, which enabled the victim to get away.

Based on these incidents, defendant was convicted of criminal offenses including rape and forcible oral copulation. He was sentenced to a lengthy prison term.

As a result of defendant's convictions and prison sentence, a biological sample was obtained from him for DNA analysis and entry into the state convicted offender databank.

In October 2000, with California's convicted offender DNA databank in operation, the state allocated funds to enable local law enforcement agencies to utilize DNA to solve sexual assault cases that lacked suspects. Sacramento County began hiring and training analysts, a process that takes about a year. At that time, the county had approximately 1,600 unsolved sexual assault cases. In July 2001, the Ollie case was screened and it was determined that there was biological evidence warranting analysis. The case was put in line for DNA analysis.

The biological evidence included a vaginal swab, semen stains on Ollie's sweater, and hair samples from Ollie obtained during the autopsy. An analyst used a portion of a semen stain from the sweater to develop a DNA profile. The profile was provided to the state Department of Justice for comparison, by computer, with the state's convicted offender databank. The search identified defendant as a potential source of the semen stain.

With a warrant, detectives obtained oral swabs from defendant, which were analyzed with the vaginal swab from Ollie, the semen stains on her sweater, and Ollie's hair samples. Defendant's DNA matched the DNA of the suspect [142 Cal.App.4th 704] samples. Through use of the "product rule," which we will discuss later, it was determined that a random chance match would be extraordinarily unlikely. fn. 2

Defendant was charged with the first degree felony murder of Ollie. In view of the DNA evidence, the defense did not deny that defendant had sexual intercourse with Ollie. Rather, the defense asserted, without evidentiary support, that Ollie and defendant had consensual intercourse on the weekend before she disappeared and that someone else abducted, raped, and murdered her.

DISCUSSION

Ollie was murdered in February 1976. Twenty-six years later, in July 2002, a complaint was filed charging defendant with having committed the crime. He contends that prosecution after such a length of time violated his right to due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution.

A

[1] Delay in prosecution that occurs before the defendant is arrested or a complaint is filed can constitute the denial of due process of law under both the state and federal Constitutions. (People v. Catlin (2001) 26 Cal.4th 81, 107 (hereafter Catlin.) "A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay." (Ibid.) Prejudice will not be presumed from such delay; it must be affirmatively shown. (People v. Martinez (2000) 22 Cal.4th 750, 769-770; People v. Archerd (1970) 3 Cal.3d 615, 640 (hereafter Archerd); People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911; People v. Butler (1995) 36 Cal.App.4th 455, 467; People v. Lawson (1979) 94 Cal.App.3d 194, 198.) If the defendant demonstrates actual prejudice, then the prosecution is permitted to offer justification for the delay. (Catlin, supra, 26 Cal.4th at p. 107.) It then becomes the trial court's [142 Cal.App.4th 705] duty to balance harm to the defendant against justification for the delay in deciding whether to dismiss the charge. (Ibid.) fn. 3

The balancing process is the same under both the state and federal Constitutions. (Catlin, supra, 26 Cal.4th at p. 107.) However, the United States Constitution imposes an additional requirement; it must be shown that the delay was deliberately undertaken to gain a tactical advantage over the defendant. (Ibid.)

In the trial court, defendant's counsel stated: "The defense makes no argument that the authorities somehow 'had it in' for [defendant] or that they delayed the investigation in order to gain some advantage over him." This concession is fatal to the claim of error based on the federal Constitution.

In his reply brief, defendant acknowledges his concession but argues it was before an evidentiary hearing revealed that the prosecution delayed until the forensic use of DNA was developed to the point that defendant could be identified and tried for the murder. According to defendant, the development of sophisticated DNA techniques was the tactical advantage the prosecution gained through delay. We reject the contention. A prosecutor should not begin a prosecution until he or she is satisfied the defendant should be prosecuted and the evidence will establish guilt beyond a reasonable doubt. (Catlin, supra, 26 Cal.4th at p. 109.) The development of forensic techniques that were not available at the time of an initial investigation provides justification for a delay in prosecution. (Id. at p. 110; Archerd, supra, 3 Cal.3d at pp. 641-643.) And the development of forensic science to the point it was possible to identify and prosecute defendant is not prejudice within the meaning of due process principles.

With respect to our state Constitution, however, a relevant consideration is whether the delay was deliberately undertaken to gain an advantage over the [142 Cal.App.4th 706] defendant. (Catlin, supra, 26 Cal.4th at pp. 109-110.) But such a showing is not required to prevail on a motion to dismiss charges. (Scherling v. Superior Court (1978) 22 Cal.3d 493, 507 (hereafter Scherling).) Governmental negligence may be sufficient if an unjustified delay causes prejudice to the defendant. (Ibid.)

The People assert that we should not follow the holding in Scherling--negligent delay may suffice--because it is dictum. We decline the invitation.

In Archerd, which did not distinguish between state and federal constitutional principles, the Supreme Court said preaccusation delay "must be purposeful, oppressive, and even 'smack of deliberate obstruction on the part of the government,' before relief will be granted." (Archerd, supra, 3 Cal.3d at p. 640.) Subsequently, in Penney v. Superior Court (1972) 28 Cal.App.3d 941 (hereafter Penney), the Court of Appeal nonetheless held negligent preaccusation delay can violate due process. (Id. at pp. 951-952.) In People v. Hannon (1977) 19 Cal.3d 588, the Supreme Court noted the issue but found it unnecessary to resolve it. (Id. at pp. 610-611, fn. 12.) There followed Scherling, in which the Supreme Court unequivocally said "it makes no difference whether the delay was deliberately designed to disadvantage the defendant, or whether it was caused by negligence of law enforcement agencies or the prosecution." (Scherling, supra, 22 Cal.3d at p. 507.)

[2] Because Scherling found there was no prejudice and thus no need to consider justification for the delay (Scherling, supra, 22 Cal.3d at p. 506), its statement that negligent delay may be enough was dictum. However, where the Supreme Court unequivocally states a principle of law in a unanimous opinion, then the statement, albeit dictum, is entitled to respect from the Courts of Appeal and should be followed absent sound reasons otherwise. (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169; see 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 947, pp. 989-991.)

We find no persuasive reason for departing from the Scherling standard. In People v. Pellegrino (1978) 86 Cal.App.3d 776 (hereafter Pellegrino), the Court of Appeal noted that the Scherling statement was dictum but found it appropriate to follow the standard. (Id. at p. 780.) Other Courts of Appeal have reiterated the standard. (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 911; People v. Hartman (1985) 170 Cal.App.3d 572, 581.) The Supreme Court has never seen fit to overrule the decisions in Penney and Pellegrino. For its part, the Supreme Court treats the absence of deliberate or intentional delay as a relevant factor, but not in itself determinative. (Catlin, supra, 26 Cal.4th at pp. 109-110.) [142 Cal.App.4th 707] Regardless of whether it was dictum, the Scherling standard has become engrained in our law and we will adhere to it. We note, however, that California authorities do not suggest delay alone, without a finding of at least governmental negligence, is sufficient to require dismissal.

B

[3] We turn to defendant's showing of prejudice. Prejudice may be shown by such things as the loss of material witnesses, loss of other evidence, and fading memories due to the lapse of time. (Catlin, supra, 26 Cal.4th at p. 107; Archerd, supra, 3 Cal.3d at p. 640.) A showing of prejudice is not an all-or-nothing matter. Defendant should demonstrate both the fact and the extent to which he has been prejudiced by the lapse of time. The trial court's task of balancing the harm to defendant against justification for the delay cannot be performed in the abstract but rather requires consideration of the particular circumstances of the individual case. (See People v. Frazer (1999) 21 Cal.4th 737, 775, overruled on another ground in Stogner v. California (2003) 539 U.S. 607, 610, 632-633 [156 L.Ed.2d 544, 551, 565].) Where, as here, defendant had a trial and we review a claim of unjustified preaccusation delay, it is appropriate to consider the evidence adduced at trial in determining whether defendant was in fact prejudiced by the delay. (Archerd, supra, 3 Cal.3d at p. 641; People v. Butler, supra, 36 Cal.App.4th at p. 464.)

As we will explain in part C, defendant demonstrated some prejudice sufficient to require the prosecution to justify the preaccusation delay, but the prejudice was minimal.

C fn. *

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

D

We now address the prosecution's showing of justification for the preaccusation delay.

In considering justification for a delay in bringing charges, courts must keep in mind the nature of the prosecutorial function. A prosecutor is not required to, and indeed should not, commence a prosecution until he or she is satisfied that the accused should be prosecuted and that the office of the prosecutor will be able to promptly establish guilt beyond a reasonable doubt. [142 Cal.App.4th 708] (People v. Catlin, supra, 26 Cal.4th at p. 109; People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at pp. 914-915.)

Limitations in forensic science at the time of an initial investigation may be sufficient justification for a delay in prosecution.

For example, William Archerd committed a number of murders by insulin injection, including murders of three women he had married. At the time of the first charged murder, eleven years earlier, the police suspected Archerd of committing the murder but could not prove it because medical authorities believed that the cause of death could not be established as due to a criminal agency. (Archerd, supra, 3 Cal.3d at p. 641.) Over the years, medical science advanced to the point that prosecution of Archerd became possible. (Id. at pp. 641-643.) Under the circumstances, the Supreme Court found the delay in prosecution was justified. (Id. at p. 643.)

Similarly, Steven Catlin was charged with two murders committed by paraquat poisoning, including the murder of his fourth wife nine years earlier. At the time Catlin's wife was murdered, a number of people made accusations against Catlin. However, laboratory tests did not exist then for revealing paraquat poisoning. Over the years, advances in medical knowledge, and Catlin's involvement in two more murders through paraquat poisoning, made prosecution possible. (Catlin, supra, 26 Cal.4th at p. 109.) The Supreme Court found that the delay in prosecution was justified because it was caused by the limits of existing laboratory tests, a mistake in preserving tissues in formalin which precluded subsequent paraquat testing, and the early caution of medical experts in stating a cause of death. (Id. at p. 110.)

Here, justification for the preaccusation delay was twofold. Despite a diligent and thorough investigation, law enforcement was never able to solve the case. Investigators were unable to develop sufficient evidence to identify defendant, or anyone else, as more than a "person of interest." The ability to use DNA and the state DNA databank to solve crimes was not developed until long after the crime.

With the exception of red blood cells, every cell in the human body has a nucleus containing the person's genetic code in the form of DNA. (People v. Venegas (1998) 18 Cal.4th 47, 58.) DNA consists of two parallel spiral sides, a double helix, composed of repeated sequences of phosphate and sugar. The sides are connected by a series of rungs, with each rung consisting of a pair of chemical components called bases. (Ibid.) There are four types of bases--adenine (A), cytosine (C), guanine (G), and thymine (T). A will pair only with T, and C will pair only with G. (Id. at pp. 58-59.) There are over three billion base pairs in a person's DNA. (Id. at p. 59.) [142 Cal.App.4th 709]

Except for identical twins, no two persons have identical DNA. (People v. Venegas, supra, 18 Cal.4th at p. 59.) This makes DNA valuable for forensic purposes. However, there is no practical way of sequencing all three billion base pairs. (Ibid.) Accordingly, forensic scientists test particular regions called loci that are known to be polymorphic, i.e., variable from person to person. (Ibid.) Scientists have identified loci where a particular pattern of base pairs is repeated successively for numbers of times that vary from person to person. (Ibid.) These repetitions are referred to as alleles. (Ibid.) These alleles can be measured and compared to determine whether a suspect sample matches an evidentiary biological sample at each of the loci tested. (Ibid.)

If a suspect sample matches an evidentiary sample at each loci, the significance of the match can be expressed statistically. (People v. Soto, supra, 21 Cal.4th at p. 523.) This generally takes the form of the "product rule." (Id. at p. 525.) The frequency with which each measured allele appears in the relevant population is estimated through the use of population databases. (Ibid.) The frequencies at each tested locus are multiplied together to generate a probability statistic reflecting the overall frequency of the complete multi-locus profile. (Ibid.) The result reflects the frequency with which the complete profile is expected to appear in the population. (Ibid.) The result is sometimes expressed as the probability that the DNA of a person selected at random from the relevant population would match the evidentiary sample at all tested loci. (Id. at pp. 524-525.)

The initial use of DNA for forensic purposes involved what is called restriction fragment length polymorphism (RFLP). The use of RFLP for forensic purposes was proposed in 1984. By 1988 or 1989, the FBI and a few out-of-state laboratories were doing RFLP testing. In 1989, California's state Department of Justice began setting up a laboratory, training analysts, and doing the extensive validation studies required for doing RFLP analyses. The Department of Justice began RFLP typing for a convicted offender database in 1991 and 1992 and began doing casework in 1992.

RFLP testing is now virtually obsolete. Modern laboratories utilize polymerase chain reaction (PCR) testing, which has a number of advantages over RFLP testing. PCR techniques can amplify an evidentiary sample and, thus, require far less DNA in the evidentiary sample for testing than did RFLP testing. The prosecution expert, Kenneth Konzak, from the Department of Justice, testified that with RFLP, samples about the size of a dime could be tested, but that PCR testing can use samples the size of a pinhead. RFLP testing utilized loci with fairly large alleles, while PCR testing, particularly that using short tandem repeats (STRs), tests much shorter alleles that are less subject to destruction through degradation. RFLP testing was a lengthier [142 Cal.App.4th 710] process than is PCR testing. RFLP testing required many steps and took six to eight weeks to develop a profile. PCR testing can be automated, and by 1998 the Department of Justice had developed the ability to run a plate of 96 samples in about two and one-half hours.

PCR testing was introduced in the late 1980s. The initial PCR testing was referred to as DQ alpha testing, which analyzed one locus with 28 types of alleles. It did not have highly significant discrimination power, perhaps one in a thousand. Around 1995, the polymarker system was introduced. Together, the DQ alpha and polymarker systems would test six loci with discrimination power in the tens or even hundreds of thousands. However, the DQ alpha and polymarker systems were difficult to interpret with mixed samples, which often occur in sexual assault cases. Another system, known as D1S80, was introduced with significant powers of discrimination. However, by that time PCR-STR testing was emerging as the preferred forensic methodology. In view of the lengthy validation process and the time it takes to train analysts with a new system, few laboratories used the D1S80 system.

From 1995 to 1997, the scientific community, with the participation of the state Department of Justice laboratory, was considering the most suitable procedure or techniques for DNA comparisons. PCR testing with STRs emerged as the preferred method. Eventually, PCR-STR test kits that analyze numerous loci and include a gender test became available. With the ability to compare numerous loci, the discrimination power of PCR-STR testing is extremely high.

In late 1997, the state Department of Justice decided to use PCR-STR testing for purposes of the convicted offender database. At that time, about 40,000 convicted offenders had been RFLP tested and entered into the data bank. There was a backlog of about 120,000 individuals to be profiled. With the expansion of the database from sexual offenders to include all violent offenders, the laboratory anticipated a backlog of 200,000 individuals by July 2001. The laboratory expanded and began hiring and training analysts--a process that took until late 1998. By July 2001, the laboratory had completed PCR-STR analysis on 200,000 samples, although there was still a backlog due to new samples coming in.

A sample was taken from defendant in May 1995, at a time when the RFLP databank was just starting up. It appears that his sample was not tested with RFLP methods. Konzak explained that in this state the laboratory has to qualify an individual before entry into the databank. This consists of checking the person's criminal history to ensure that he or she has been convicted of a crime that supports entry into the database. In 1995 or 1996, the laboratory began using collection kits by which a thumb print would accompany the [142 Cal.App.4th 711] sample. The person's identification number could be confirmed by thumb print and an automated criminal history system could be used to qualify the person. However, defendant's sample was collected before those kits were in use, and his qualification had to be done manually. For purposes of efficiency in light of the huge backlog, the laboratory began first testing samples where the individual could be qualified through the automated system.

The laboratory began analyzing a set of samples that included defendant's sample in September 2000, after it had begun PCR-STR testing. A profile was developed by December 2000. Defendant was qualified and his profile was entered into the database in April 2001.

The Sacramento County crime laboratory never did RFLP testing. In December 1997, it began doing PCR DQ alpha-polymarker testing. Testing was limited to active cases with a suspect. Mary Hansen, the supervising criminalist, testified that without a suspect or a DQ alpha-polymarker databank, there would be no purpose for analyzing an evidentiary sample. The laboratory began doing PCR-STR testing in February 2000. In October 2000, the state allocated funds to enable local law enforcement agencies to use the state DNA database to solve suspectless crimes. The county laboratory expanded and hired and trained analysts, which took about a year. In May 2002, a DNA profile from the Ollie case was submitted to the state database. Defendant was identified as a possible source of the sample. Further testing established that he matched the evidentiary samples.

In light of this evidence, we conclude, as did the trial court, that the prosecution established justification for the preaccusation delay. The evidence we have recounted above shows it was the DNA evidence that made it possible to identify defendant as a suspect and to proceed with prosecution. Because of the DNA evidence, some of the other evidence became significant; however, the other evidence was insufficient, at the time of the crime and investigation, to make defendant anything other than one of many persons of interest.

The trial testimony showed that forensic use of DNA began in 1988 or 1989 and developed over the next 10 to 12 years. Numerous issues were the subject of extensive discussion in the scientific community. The issues included the development and selection of the best testing methodology for forensic use; the development of protocols to ensure testing accuracy; validation studies to show accuracy; and the selection of statistical methods for explaining the results. The factor that made possible the identification of defendant as a suspect, i.e., the development of a searchable database, required resolution of numerous issues. These included the selection of the best testing system for use in a databank; the identification and development [142 Cal.App.4th 712] of testing procedures for sufficient loci to establish a significant power of discrimination; laboratory validation studies; training of analysts; and the testing and qualification of hundreds of thousands of offenders. These matters reasonably and necessarily took time to resolve.

Defendant asserts that PCR-STR testing was perfected in 1985 and that any delay after that was unexcused. To the contrary, the record shows that PCR-STR testing was introduced in the mid-1990s. When Cellmark Labs used PCR-STR testing in a California criminal case that arose in late 1995, the PCR-STR method tested only three genetic markers. (People v. Allen (1999) 72 Cal.App.4th 1093, 1097 (hereafter Allen).) That would not have sufficient discriminatory power for use in a databank. In 1999, when the Allen decision was issued, there were only two judicial decisions, from other states, that recognized general scientific acceptance of PCR-STR testing. (Id. at pp. 1099-1100.)

Defendant asserts that the only excuse given for the delay was a lack of funding. Again this is not so. The development of DNA testing over the years, to the point where use of a databank became possible, was fully explained. During this period, the Department of Justice laboratory participated diligently in the ongoing national discussion.

Defendant suggests that the prosecution should have asked for DNA testing as soon as DNA testing became available. However, since law enforcement lacked a suspect at the time, or a functional convicted offender databank, there would have been no purpose for doing so. To the extent defendant suggests he should have been treated as a suspect before there was probable cause for doing so, we reject the suggestion. (Catlin, supra, 26 Cal.4th at p. 109; People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at pp. 914-915.)

[4] Upon consideration of all of the evidence, we conclude the trial court did not abuse its discretion in denying defendant's motion to dismiss for preaccusation delay. As defendant conceded in the trial court, the delay was not for the purpose of gaining an advantage over the defendant. (Catlin, supra, 26 Cal.4th at pp. 109-110.) Indeed, the record does not even establish prosecutorial negligence. The delay was the result of insufficient evidence to identify defendant as a suspect and the limits of forensic technology. (Ibid.; Archerd, supra, 3 Cal.3d at pp. 641-643.) When the forensic technology became available to identify defendant as a suspect and to establish his guilt, the prosecution proceeded with promptness. Without question, the justification for the delay outweighed defendant's showing of prejudice. [142 Cal.App.4th 713]

II

Defendant contends that the DNA evidence should not have been introduced because, he argues, there is no generally accepted statistical method for explaining the significance of DNA evidence when a suspect is identified through use of a convicted offender databank. We disagree.

A

[5] California courts apply a three-prong test for determining whether expert testimony based upon application of a new scientific technique may be introduced into evidence: (1) the reliability of the technique must be established; (2) the witness must be properly qualified as an expert to give an opinion on the subject; and (3) it must be shown that correct scientific procedures were used in the particular case. (Kelly, supra, 17 Cal.3d at p. 30; see People v. Leahy (1994) 8 Cal.4th 587, 612.)

Defendant bases his appellate argument on the first prong of the Kelly test, reliability, which requires a showing that the scientific technique is sufficiently established to have gained general acceptance in the particular field to which it belongs. (People v. Venegas, supra, 18 Cal.4th at p. 76.) The test does not require a unanimity of views in the scientific community; the test is met where "use of the technique is supported by a clear majority of the members of that community." (People v. Guerra (1984) 37 Cal.3d 385, 418.) Stated another way, the test is met where the technique has been generally accepted by a typical cross-section of the relevant community. (People v. Leahy, supra, 8 Cal.4th at p. 612.) The test is not met where it appears that scientists significant in number or expertise publicly oppose a technique as unreliable. (People v. Soto, supra, 21 Cal.4th at p. 519.)

[6] When a trial court admits evidence based on a new scientific technique and that decision is affirmed in a published appellate decision, then the precedent established will control subsequent trials unless new evidence is presented reflecting a change in attitude in the scientific community. (Kelly, supra, 17 Cal.3d at p. 32; see also People v. Venegas, supra, 18 Cal.4th at p. 76.)

Over the years, most of the issues that arise from the forensic use of DNA have been resolved. Thus, RFLP testing is generally accepted. (People v. Axell (1991) 235 Cal.App.3d 836, 860.) PCR testing is generally accepted. (People v. Morganti (1996) 43 Cal.App.4th 643, 665.) And PCR testing for STRs is generally accepted. [142 Cal.App.4th 714] (People v. Hill (2001) 89 Cal.App.4th 48, 57-58; People v. Allen, supra, 72 Cal.App.4th at p. 1100.)

In addition, the use of the unmodified product rule for DNA forensic analysis has gained general acceptance in the relevant scientific community. (People v. Soto, supra, 21 Cal.4th at p. 541.)

B

Here, evidence of the random match probability derived through the product rule was presented to the jury. As we have explained in part D of part I, ante, under the product rule, the population frequencies of all measured alleles are estimated through use of population databases and then are multiplied together to generate a probability statistic for the complete multi-locus profile. (People v. Soto, supra, 21 Cal.4th at p. 525.)

Defendant does not dispute that the product rule is generally accepted in the scientific community for use in cases where a suspect is identified through traditional investigative techniques and is then compared one to one with an evidentiary sample. But he argues that there is no general agreement in the case of a cold hit, i.e., where the suspect is identified through a DNA databank.

Before discussing this contention, we must describe the process by which defendant was identified.

C

As we have previously noted, forensic DNA comparisons are performed by measuring alleles at different loci. Individuals inherit one allele at each locus from each parent. In very rare instances, a mutation may cause a person to have three alleles at a locus. More commonly, a person may be a homozygote at one or more loci, meaning he or she inherited the same length of allele from each parent. When a person inherits different alleles from his or her parents at a locus, the person is a heterozygote at that locus. In PCR-STR testing, a heterozygote locus will reflect two lengths of allele. A homozygote locus will reflect one length of allele, but the amount of the alleles in the sample will often reveal the homozygote nature of the locus.

In a sexual assault case, an evidentiary sample will often contain contributions from both the male and female. The male contribution, sperm, is essentially half cells, i.e., it contains one-half of the male's DNA. Collectively, the sperm will include the male's total DNA. The female contribution consists of nucleated epithelial cells, each containing a full compliment of [142 Cal.App.4th 715] DNA. There is a method, called differential extraction, which can separate the male and female contributions. However, the method is not always completely successful, with the result that there may remain some female DNA in the sperm fraction and some male DNA in the non-sperm fraction.

Degradation of an evidentiary sample can affect DNA testing. Degradation will not change a DNA profile; but with degradation, alleles may become impossible to detect. Typically, the longer alleles are most affected by degradation. There is a characteristic pattern to degradation, which will indicate to an analyst that the sample has partially degraded.

In PCR-STR testing, laboratories use commercial testing kits. During the initial phase of DNA testing in this case, commercially available kits were the Profiler Plus kit, which tested nine loci and a gender marker, and the Cofiler kit, which tested six loci and a gender marker. Two of the loci tested with these kits overlapped. Thus, if both were used, the laboratory could test 13 loci and the gender marker. Eventually, a kit called the Identifiler kit became available and was validated. That kit combined the Profiler Plus and Cofiler kits and was more sensitive. With greater sensitivity, the Identifiler kit would be better at detecting alleles in small or partially degraded samples. However, it might also detect a foreign allele left by something such as sneezing or even talking over the sample.

At the time defendant's reference sample was analyzed and entered into the state convicted offender databank, California's Department of Justice laboratory was using the Profiler Plus kit to test nine loci. The computer search engine that was designed to compare evidentiary profiles to profiles in the databank was not intended to identify the source of the evidentiary sample; rather, it was a screening device. The program would record a moderate stringency match at a locus if a profile in the databank matched at least one of the alleles in the evidentiary sample. A high stringency match occurs where the evidentiary profile reflects two alleles and the databank profile matches both. A person would be identified as a candidate match if there were moderate or high stringency matches on at least seven loci.

To be declared a match for forensic purposes, a suspect's profile must match the evidentiary profile for every allele at every locus that is identified. A single mismatch excludes the suspect. The state's search engine was not programmed to require such a complete match. Evidentiary samples are often mixed with contributions from both the perpetrator and the victim. Thus, for example, if an evidentiary sample reflects two alleles at a locus, it may be that the perpetrator was a homozygote at that locus and contributed one allele, while the victim contributed the other. Further analysis can make the distinction, but for search purposes the state laboratory does not do so. The [142 Cal.App.4th 716] standard of a moderate stringency match at seven loci was set through experience because that standard best limits coincidental matches without risking exclusion of the actual perpetrator.

If a databank search identifies a candidate match, the person conducting the search examines the data to determine whether there is significance to the match such that it should be reported to the requesting agency. If the candidate match appears significant, the laboratory reanalyzes the original convicted offender sample with those stored on either side of it to ensure there was no laboratory mix up. The laboratory then reports the name of the candidate and the results of the search to the requesting agency.

When the biological evidence from the Ollie case was submitted to the county laboratory, the analyst, Jeff Herbert, did a direct digest on a cutting from one of the semen stains on the sweater. A direct digest means that he did not use a differential extraction to separate the male and female contributions. Herbert tested the sample with both the Profiler Plus and Cofiler systems. He detected complete genotypes, i.e., two alleles, at 11 loci and one allele at another locus. He was unable to detect alleles at one locus. The profile was submitted to the Department of Justice, and the nine-loci profile of the Profiler Plus kit was run through the state's computer search engine. Defendant was identified as a candidate and, in due course, the identification was reported to the county.

With a warrant, oral swabs were obtained from defendant. Herbert ran a confirmation test to ensure that defendant's profile matched the evidentiary profile. Herbert then developed a 13-loci profile for Ollie from hairs retained during the victim's autopsy. The sweater sample that was initially tested was a mixed sample with a major and a minor contributor. Defendant's profile matched that of the major contributor, and where alleles of a minor contributor were detected, they matched Ollie's profile.

Herbert next analyzed the vaginal swab and another stain from the sweater using the Profiler Plus system. On this occasion, he did a differential extraction to separate the male and female contributions, although without complete success. Herbert was able to detect alleles at eight loci. Defendant's profile matched that of the male contributor at each loci.

When the Identifiler system, with its greater sensitivity, was validated, Herbert tested the vaginal swab and sweater stains with that system. He was able to develop a complete profile at 13 loci from the vaginal swab. Defendant's profile matched the sperm fraction at each locus. [142 Cal.App.4th 717]

D

The trial court conducted a pretrial evidentiary hearing with respect to defendant's prong one Kelly objection to the statistical expression of the meaning of the DNA testing. The parties agreed the court would take judicial notice of, and consider as evidence in this case, the evidence presented in a prior Kelly hearing in the case of People v. Robinson, Sacramento County Superior Court No. 00F06871 (hereafter the Robinson case). The trial court in the Robinson case had conducted a lengthy hearing and ultimately determined that use of the unmodified product rule is generally accepted in cold hit cases. fn. 7

A number of experts testified at the Kelly hearing in the Robinson case. They included Dr. Ranajit Chakraborty, a renowned expert in human population genetics (see People v. Soto, supra, 21 Cal.4th at p. 527, fn. 20); Dr. George Sensabaugh, Jr., a forensic biologist and biochemical geneticist who is an expert in the forensic use of DNA (see People v. Pizarro (2003) 110 Cal.App.4th 530, 589; People v. Axell, supra, 235 Cal.App.3d at p. 849); Gary Sims, who has a master of public health degree with a specialty in forensic science and is director of the case work section of the Department of Justice laboratory; Dr. Dan E. Krane, an associate professor of biological science at Wright State University; Dr. Norah Rudin, a forensic DNA consultant; and Dr. Laurence Mueller, an ecologist and population geneticist who has frequently appeared as a defense witness at Kelly hearings (see, e.g., People v. Soto, supra, 21 Cal.4th at p. 529; People v. Venegas, supra, 18 Cal.4th at p. 72; People v. Pizarro, supra, 110 Cal.App.4th at p. 595; People v. Smith (2003) 107 Cal.App.4th 646, 662).

From the evidence before the trial court, it appears virtually all DNA scientists believe that PCR-STR testing with numerous loci has a tremendous power of discrimination. And most, if not all, agree that the unmodified product rule is a valid and reliable means of demonstrating what it purports to demonstrate, that is, the rarity with which a particular multi-locus profile is expected to appear in the population and thus the probability of a random match.

Some scientists opine that the power of discrimination with multi-locus PCR-STR testing is so great that source attribution can be declared, i.e., it can be declared that the defendant is the source of the evidentiary sample. This view does not appear to have achieved general acceptance. Nevertheless, [142 Cal.App.4th 718] the minority view does not create a controversy as to use of the product rule. Those scientists simply believe that when the expected frequency of a profile, determined through the product rule, becomes extraordinarily miniscule, then a conclusion of source attribution can be drawn.

Evidence before the trial court indicated that, in addition to the random match probability determined through use of the product rule, there are three possible methods of explaining the statistical significance of a DNA match in a cold hit case. We will discuss each in turn.

One method was suggested by the National Research Council in 1992. (Nat. Research Council, DNA Technology in Forensic Science (1992) (hereafter NRC-I).) At that time, forensic use of DNA was in its infancy, and the idea of using a convicted offender databank to solve crimes was new. (See Annot., Validity, Construction, and Operation of State DNA Database Statutes (2000) 76 A.L.R.5th 239.) The NRC-I report suggested that in a databank search, one set of loci could be used to screen and identify a suspect and then a different set of loci could be used to confirm a match. Statistical analysis using the product rule would be done on the second set of loci.

The NRC-I suggestion was not based upon any scientific or statistical theory. It was concerned with matters of probable cause, which are judicial rather than scientific questions. No scientific or statistical principle requires that competent, relevant information be disregarded. A subsequent report of the National Research Council criticized the NRC-I suggestion for wasting data. (Nat. Research Council, The Evaluation of Forensic DNA Evidence (1996) (hereafter NRC-II).) The evidence in the trial court established that the NRC-I approach has been generally rejected and is not used in any laboratory or in any jurisdiction. fn. 8

The existence of such an old suggestion of a method of practice that was never generally accepted, and has long since been generally rejected, does not create a current controversy in the relevant scientific community.

Another approach that has been suggested is the creation of likelihood ratios through the use of a Bayesian formula. "Bayesian" refers to the Reverend Thomas Bayes who, in the nineteenth century, created a formula [142 Cal.App.4th 719] that purports to show the effect of new information on a prior probability. (See McCormick on Evidence (5th ed. 1999) § 211, pp. 817-822.) Use of a Bayesian formula requires a quantified prior probability and quantifiable new information. (Ibid.) Bayesian analysis then utilizes a complicated formula to revise the prior probability on the basis of the new information. (Ibid.) Bayesian techniques are inherently confusing and would be difficult, if not impossible, to explain to an average jury. (Ibid.; see also 3 Forensic Sciences (2006 Matthew Bender & Co.) § 30.03 et seq.) The end result of a Bayesian analysis is often misleading. (McCormick on Evidence, supra, § 211, at p. 819.)

We need not explore in depth the deficits of the forensic use of a Bayesian analysis in a criminal case. It was established in the trial court that those who suggest a Bayesian approach do not do so because they reject the reliability of the product rule and random match probabilities. Rather, they accept the product rule and random match probability as a valid and reliable expression of what it purports to be, but they believe it may be too generous to the defendant. In their view, the DNA evidence can be even more powerful, and thus more damning to the defendant, through the use of a Bayesian approach. But they concede this applies only when relatively few loci are tested and the random match probability is not exceptionally low. When the random match probability becomes very low, even the Bayesians agree the Bayesian approach becomes irrelevant.

Nothing in the Kelly test requires that there be one and only one approach to a scientific problem. The question is whether scientists significant in number or expertise publicly oppose a technique as unreliable, not whether some scientists believe there may be an alternative, perhaps even better, technique available. (People v. Soto, supra, 21 Cal.4th at p. 519.) The fact that some, a relatively few, scientists have suggested that a Bayesian approach could be used does not constitute a rejection of the product rule and random match probability. The Bayesians do not regard the product rule as unreliable in demonstrating what it purports to demonstrate. Thus, the suggestions by the Bayesians do not establish a controversy with respect to the product rule.

The third approach identified in the trial court is the approach suggested in NRC-II, the second National Research Council report in 1996, i.e., that in the case of a databank search, the expected frequency of the profile could be calculated through use of the product rule, and the result could then be multiplied by the number of profiles in the databank. The result would be the expected frequency of the profile in a sample the size of the databank and thus the random chance of finding a match in a sample of that size. The result [142 Cal.App.4th 720] may be significant when few loci are tested and the discriminatory power of the testing is limited, but the significance tends to disappear when many loci are tested. fn. 9

In the trial court, the experts were in agreement that both the random match probability and the NRC-II formula are valid and reliable statistical expressions of what they purport to represent. But the formulations address different questions. If the jury is asked to infer that the defendant is the source of the evidentiary sample because he was identified in a databank search, then the NRC-II formula is appropriate. However, the NRC-II formulation does not supersede the random match formula. The rarity of a DNA profile in the population does not change due to the manner through which the defendant is identified as a suspect. Thus, if the jury is asked to infer that the defendant is the source of the evidentiary sample due to the rarity of the profile in the population, then the unmodified product rule is the appropriate formula.

The evidence established that the unmodified product rule is in universal use in explaining the meaning of a DNA match whether or not a databank search was used to identify the suspect. Some laboratories report both the result of the unmodified product rule and the result of the NRC-II formula. Both are relevant provided the jury is made aware of the different questions they address.

The expert testimony presented to the trial court established that to the extent there is a debate, it is over relevance rather than reliability. Most of the experts who testified agreed that rarity of the DNA profile in the population is a relevant question. Dr. Mueller, the defense expert, did not disagree that the unmodified product rule establishes rarity in the population, but said he does not find that to be the interesting question. It was apparent that he was referring to relevance and not reliability.

The issue in a Kelly prong one inquiry is reliability. (People v. Soto, supra, 21 Cal.4th at p. 519.) The court does not determine whether the technique is reliable as a matter of scientific fact; rather, the court defers to the scientific [142 Cal.App.4th 721] community and considers whether the technique is generally accepted as reliable in that scientific community. (Ibid.)

The evidence in this case established that use of the product rule to compute a random match probability is overwhelmingly accepted by the scientific community as a scientifically reliable means of demonstrating the rarity of a profile in the population.

Consequently, the technique satisfies the reliability prong of the Kelly test and it was for the trial court, not the scientific community, to determine the relevance of the technique to this criminal prosecution. In any event, the evidence established that a heavy majority of the scientific community opine that the rarity of a profile in the population is a relevant inquiry in a cold hit case. The existence of a few dissenters, such as Dr. Mueller, does not preclude use of the statistic. (People v. Guerra, supra, 37 Cal.3d at p. 418.)

Finally, we note the NRC-II report assumed that in a databank search, the evidentiary profile matched the defendant's profile and evidence of that match is being presented to the jury. This is not what happens in a California databank search. As we have previously noted, the computer search engine employed in California is simply a screening device. In a comparison of the nine loci of the Profiler Plus kit, the computer will identify a candidate if a profile in the databank matches at least one allele at seven loci. Identification of a candidate in that manner cannot be called a match. Rather, to constitute a match, a suspect profile must match the evidentiary sample for all alleles at every loci; a single mismatch will exclude the suspect. That can be determined only through complete and thorough testing after the candidate is identified.

A search of the state DNA databank operates in a manner very similar to a search of the state's fingerprint database (the CAL-ID system). In a CAL-ID search, a fingerprint analyst identifies a number of points of comparison on an evidentiary print and submits the profile for a computer search of the state fingerprint database. The computer search will produce candidates. fn. 10 The candidate prints are visually examined, and those that are not close are eliminated. If a candidate print appears close to the evidentiary print, the analyst requests the candidate's fingerprints from the Department of Justice. A match is determined in the traditional manner, through manual comparison by a qualified analyst. [142 Cal.App.4th 722]

The California Supreme Court has rejected a prong one Kelly challenge to identification of a person as a fingerprint candidate through a CAL-ID search, after which the person's fingerprints are compared manually to the evidentiary fingerprints and determined to match. (People v. Farnam (2002) 28 Cal.4th 107, 159.) The court concluded "that the admission of [expert] testimony concerning the CAL-ID system did not implicate the concerns addressed in Kelly. The reliability of the computerized system in comparing latent prints to fingerprints in its database was apparent at trial. The jury could make its own comparisons between the latent prints found at the . . . crime scene and defendant's fingerprints, and there was no dispute that the system made its comparisons 'without tampering or alteration of any kind.' [Citation.] Moreover, [the expert] did not suggest that the CAL-ID system positively identified the latent prints as defendant's fingerprints, or that any opinion regarding a fingerprint identification was based on the computer. Although the police used the CAL-ID system to narrow the range of potential candidates whose fingerprints might match the latent prints, the prosecution relied on a long-established technique--fingerprint comparison performed by fingerprint experts--to show the jury that defendant's fingerprints matched those found at the . . . residence. Accordingly, the trial court did not err under Kelly when it admitted [the expert's] testimony." (Id. at p. 160.)

DNA comparison differs from fingerprint comparison in some respects. It is a relatively new rather than long-established technique, but it has been established that the DNA techniques used in this case are reliable in the sense that they are generally accepted in the scientific community. Fingerprints can be shown to the jury and the bases for declaring a match illustrated. DNA analysis produces printouts that can illustrate the bases for comparison to the jury, but a jury cannot physically observe and compare DNA.

Here, the reliability of a DNA databank search in identifying a candidate was apparent at trial. Like a fingerprint database search, a DNA databank search makes its comparisons without tampering with or altering the evidence in any way. In fact, the testing that resulted in declaring a match used a new DNA sample from defendant. It was established that the manner in which a suspect is identified does not change the frequency of a DNA profile in the population. The databank search merely screened the DNA databank to identify a possible candidate and was not the basis for declaring that defendant's DNA matched that of the evidentiary samples; rather, the basis for declaring a DNA match relied upon complete testing with techniques that have been determined to be reliable under the Kelly test.

[7] Like the use of a CAL-ID fingerprint search to identify potential candidates, a DNA databank search to identify a potential candidate does not implicate the concerns addressed in Kelly. [142 Cal.App.4th 723]

E

We summarize. Experts agree PCR-STR testing with numerous loci has a tremendous power of discrimination. The experts, including the defense experts, agreed that at 13 loci a DNA profile is essentially unique. In fact, Dr. Mueller, the defense expert, testified that with a 13-loci match, the only real question is the possibility of laboratory error. The use of the unmodified product rule to establish a random match probability to demonstrate the rarity of a DNA profile in the population has been judicially determined to be generally accepted in the scientific community. (People v. Soto, supra, 21 Cal.4th at p. 541.) All laboratories currently use that method to explain the meaning of a DNA match regardless of whether the suspect was identified through a database search. The majority of experts, with a few dissenters, accept the random match probability as a scientifically reliable means of explaining the meaning of a DNA match in a databank case.

Defendant's contention is that, despite the virtually universal scientific agreement that a 13-loci profile is essentially unique, the trial court erred in allowing the DNA evidence to be presented to the jury. He bases the argument upon a purported dispute in the scientific community regarding the statistical means of explaining the meaning of a DNA match when a databank is used to identify a potential suspect. As we have shown, the dispute is more shadow than real.

We agree with the trial court that the scientific community has generally accepted the random match probability derived through the product rule in a DNA databank case. The evidence was properly admitted.

III-V fn. *

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

DISPOSITION

The judgment is affirmed.

Hull, J., and Cantil-Sakauye, J., concurred.

­FN *. Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts IC, III, IV and V.

­FN 1. For simplicity and to avoid confusion, we will refer to members of the George family by their first names.

­FN 2. The random match probability is the same as the anticipated frequency of a particular profile in the population. (People v. Soto (1999) 21 Cal.4th 512, 524-525.) Under the product rule, the anticipated frequency of a profile is dependent in part on the number of DNA loci tested. (Ibid.) A 13-loci profile was developed in this case, and it was determined that this profile would occur at random among unrelated individuals in about one in nine hundred and fifty sextillion African Americans, one in one hundred and thirty septillion Caucasians, and one in nine hundred and thirty sextillion Hispanics. There are 21 zeros in a sextillion and 24 zeros in a septillion.

­FN 3. Defendant asserts that prejudice may be presumed, citing Doggett v. United States (1992) 505 U.S. 647 [120 L.Ed.2d 520]. But that case concerned only postaccusation delay in violation of the Sixth Amendment right to a speedy trial. (Id. at p. 648 [120 L.Ed.2d at p. 526] [negligent delay of eight and a half years between obtaining the indictment and arresting the accused].) In such circumstances, prejudice can be presumed and, while not sufficient in itself, such presumed prejudice is part of the mix of relevant facts. (Id. at pp. 655-656 [120 L.Ed.2d at pp. 530-531].) With respect to preaccusation delay, however, the due process clause "has a limited role to play in protecting against oppressive delay;" "proof of actual prejudice" is "a necessary but not sufficient element of a due process claim . . . ." (United States v. Lovasco (1977) 431 U.S. 783, 789-790 [52 L.Ed.2d 752, 758-759], italics added; United States v. Marion (1971) 404 U.S. 307, 325-326 [30 L.Ed.2d 468, 481-482].) Stabio v. Superior Court (1994) 21 Cal.App.4th 1488 was a case of postaccusation, not preaccusation, delay (id. at p. 1493) and, thus, it does not hold that prejudice may be presumed from preaccusation delay in support of a claim of federal constitutional error. In any event, as we will explain, a concession by defendant in the trial court defeats his federal due process claim.

­FN *. See footnote, ante, page 696.

­FN 7. An appeal in the Robinson case is currently pending in this court (No. C044703). As did the trial court, we take judicial notice of the transcripts of the Kelly hearing in that case and consider the evidence therein.

­FN 8. The NRC-I approach has been generally rejected, but not because it would give affirmatively false information to the jury. For example, if six loci were used for screening and a different set of six loci were used for confirmation, the application of the product rule to the six confirmatory loci would accurately reflect the expected frequency of the six-loci confirmatory profile. The approach is rejected because it unnecessarily wastes information by ignoring the six-loci match at the screening loci. Scientific and statistical theories do not require that valid information be wasted in that way.

­FN 9. When the Ollie evidentiary profile was screened through the state DNA databank, there were 184,000 convicted offender profiles in the databank. If only a few loci had been tested and the population frequency of those loci was, for example, one in 1,000,000, then the probability of a random match in a sample the size of the databank would be one in 5.43, a not-at-all rare possibility. But in this case, the 13-loci profile produced population frequencies of one in 950,000,000,000,000,000,000,000 African-Americans, one in 130,000,000,000,000,000,000,000,000 Caucasians, and one in 930,000,000,000,000,000,000,000 Hispanics. The NRC-II formulation would produce a random chance of finding that profile in a sample the size of the databank of one in 5,163,000,000,000,000,000 African-Americans, one in 706,500,000,000,000,000,000 Caucasians, and one in 5,054,000,000,000,000,000 Hispanics. It seems most unlikely that the difference would be significant to the jury.

­FN 10. The fingerprint analyst can specify the number of candidates to be selected. The computer will select that number of candidates from the database who best match the evidentiary profile. The County of Sacramento typically asks for 10 to 15 candidates so as not to exclude a possible match.

­FN *. See footnote, ante, page 696.

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