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Birotte v. Superior Court of Los Angeles County

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN


September 8, 2009

LORENZO BIROTTE, PETITIONER,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, RESPONDENT; PEOPLE OF THE STATE OF CALIFORNIA, REAL PARTY IN INTEREST.

ORIGINAL PROCEEDING; application for writ of mandate. Drew E. Edwards, Judge. Petition denied. (Los Angeles County Super. Ct. No. BA295261)

The opinion of the court was delivered by: Perluss, P. J.

CERTIFIED FOR PUBLICATION

Lorenzo Birotte was charged with rape, forcible oral copulation and forcible sodomy more than 10 years after the crimes were committed and more than one year after a report first identified him by name as a suspect based on deoxyribonucleic acid (DNA) testing. The statute of limitations for the crimes charged is ordinarily 10 years. (Pen. Code, § 801.1, subd. (b).)*fn1 However, section 803, subdivision (g)(1) (section 803(g)(1)), permits a criminal complaint to be filed "within one year of the date on which the identity of the suspect is conclusively established by DNA testing" if certain conditions are met.

When is a suspect‟s identity "conclusively established by DNA testing" within the meaning of section 803(g)(1)? Based on the language of the statute itself, as well as the legislative history of Assembly Bill No. 1742 (2000-2001 Reg. Sess.), which added section 803(g)(1) to the Penal Code, the additional one-year limitations period does not begin at least until qualified laboratory personnel fully evaluate and verify the data generated by the initial, automated computer match between the DNA profile developed from a suspect‟s biological sample and the DNA profile developed from evidentiary sources, including biological materials left by perpetrators at crime scenes or obtained from victim examinations. Indeed, although as a practical matter it may eliminate any limitations period for crimes to which section 803(g)(1) applies, a reasonable interpretation of the statutory language, viewed in context, suggests the additional one-year limitations period does not commence until a biological sample has been obtained with a sufficient chain of custody for the DNA profile developed from it to be admissible in evidence, that DNA profile has been matched to a DNA profile developed from crime scene evidence and statistical analyses have been completed that establish with sufficient certainty the suspect is the source of the evidentiary profile. Because the criminal complaint was filed in this matter within one year of even the earliest of those possible trigger dates, the trial court properly denied Birotte‟s motion to dismiss the charges as barred by the statute of limitations. Accordingly, the petition for a writ of mandate is denied.

FACTS AND PROCEDURAL BACKROUND

1. The Sexual Offenses

According to her testimony at Birotte‟s preliminary hearing on June 20, 2006, C.H., who did not have a telephone, was talking to her mother from a telephone booth during the early morning hours of August 8, 1995 when Birotte, whom she identified in court as her assailant, came up behind her, grabbed her around the neck and dragged her to his car. After she was forced into the front passenger seat, C.H. saw a large knife lying near the manual gearshift. Birotte locked the car doors, drove to a dark area, parked, put the passenger seat in a reclined position and raped C.H.*fn2

Birotte drove C.H. back to the telephone booth and unlocked the car doors. C.H. ran from the car and then called her mother from a different telephone booth to tell her what had happened. C.H.‟s mother called the police, who interviewed C.H. at her home. C.H. subsequently went to the hospital for an examination, including the preparation of a rape kit.

2. The Identification of Birotte as a Suspect Through DNA Testing

a. The Identification Process Generally

At the evidentiary hearing on Birotte‟s motion to dismiss, Linton Von Beroldingen, a criminalist manager in the data bank program at the California Department of Justice, Jan Bashinski Richmond DNA Laboratory (DOJ Lab), testified about the DNA testing process that identified Birotte as a suspect.

The DOJ Lab maintains a database of DNA profiles referred to as CODIS, an acronym for Combined DNA Index System. CODIS contains two categories of DNA profiles: "offender profiles"*fn3 and "forensic unknown profiles."

Offender profiles are developed from buccal swab samples or other biological samples collected from, among others, individuals convicted of certain felonies pursuant to the DNA and Forensic Identification Database and Data Bank Act of 1998 (DNA Data Bank Act) (§§ 295-300.3). Offender profiles typically identify numerical specifications for forms of genetic material at 13 or 15 loci*fn4 and are identified in CODIS by a number, not a name, to maintain privacy and to prevent misuse of the information. Personnel working for the CODIS unit of the DOJ Lab are responsible for developing the offender profiles from DNA samples and uploading those profiles into CODIS.

Forensic unknown profiles are developed from evidentiary sources-usually biological materials left by perpetrators at crime scenes or obtained from victim examinations-provided by law enforcement agencies to one of approximately 20 government forensic laboratories, including a casework laboratory within the DOJ Lab,*fn5 or private laboratories that provide the data to a government laboratory for uploading into CODIS. Because evidentiary sources of DNA may have been subjected to environmental conditions that degrade the samples or may for other reasons have minimal amounts of DNA present, forensic unknown profiles may not have numerical specifications for forms of genetic material at all 13 or 15 loci as do offender profiles.

Generally, the CODIS unit performs a weekly, routine computer search that compares offender profiles to forensic unknown profiles. A match between an offender profile and forensic unknown profile of at least seven loci is considered a "candidate match"; and a match detail report is generated that lines up both profiles, identified at that point only by code numbers, for comparison. The candidate match is reported to the laboratory that submitted the forensic sample. Employing a utility within the computer software, the submitting laboratory can then designate the match as an "offender hit," which triggers a confirmation process by the CODIS unit. Once the confirmation process has been initiated, CODIS unit personnel retrieve the offender sample from storage and analyze it again to confirm the data initially uploaded into CODIS are correct. Personnel also retrieve the information card submitted with the offender sample, which contains identifying information, such as the offender‟s fingerprints and California state identification number.

After measures are taken to confirm the information card is accurate and the offender profile uploaded into CODIS is correct, the CODIS unit prepares a "hit notification" document. This document and supporting records are placed in a file that is then subject to a technical review, which includes reviewing the records of the DNA data analysis, and an administrative review to ensure, among other things, no clerical errors have been made that might lead to the identification of the wrong suspect.*fn6 Once those reviews have been completed, the hit notification document is forwarded to the laboratory that submitted the forensic unknown profile identifying by name the person whose offender profile matched it. The submitting laboratory is responsible for notifying the law enforcement agency of the suspect‟s identity.

According to Von Beroldingen, the CODIS unit‟s job is completed after it has notified the submitting laboratory of the suspect‟s identity. However, in cases in which the submitting laboratory is the casework unit of the DOJ Lab, the casework unit reviews the CODIS unit file associated with the offender match to verify it. The casework unit has more complete data about the forensic unknown profile than the CODIS unit. As Von Beroldingen explained, "[The CODIS unit is] looking at an abstract of the data that [the casework unit has]. We‟re looking at sets of numbers. But the data that they have [are] electrophoretic in nature and it has more to it than that abstraction. And there are occasions on which that becomes important. In the simplest case evaluation of the electropherograms will lead to the same conclusion as evaluation of the comparison of the described alleles in a chart, but it‟s possible that that might not be the case."

Once the casework unit verifies the match, it generates a report that is sent to the law enforcement agency that provided the evidentiary material from which the forensic unknown profile was developed informing it of the offender match and the identity of the suspect. That report is also subject to a technical and an administrative review before it is considered complete.

b. The Identification of Birotte

On April 17, 2003 Los Angeles Police Department Scientific Services Division (LAPD Lab) personnel screened items from C.H.‟s rape kit and determined sperm was present on a vaginal swab that could be tested for DNA.*fn7 The LAPD Lab forwarded the testable sample to the casework unit of the DOJ Lab, which in a report dated June 11, 2003 stated a male DNA profile had been detected for the sperm extracted from the swab. On June 24, 2003 this forensic unknown profile was uploaded into CODIS.

On March 19, 2004 a DNA sample was collected from Birotte at the Los Angeles County Sheriff‟s Department after he had been convicted of rape and sexual battery in another case. On November 9, 2004 the DNA profile developed from Birotte‟s sample was uploaded into CODIS. On November 12, 2004 a candidate match was generated during the weekly computerized comparison of offender profiles to forensic unknown profiles: Thirteen loci from Birotte‟s offender profile, identified only by a number at that time, matched 13 loci from the forensic unknown profile created from the sperm found on the vaginal swab in C.H.‟s rape kit.

In a hit notification report dated December 14, 2004 to the casework unit director, a criminalist with the CODIS unit identified Birotte by name as the offender matched to the forensic unknown profile from C.H.‟s rape kit. The report also noted there had been a match between Birotte and a different forensic unknown profile. (The sexual offense in the second matched case, involving the victim M.R., had occurred on August 8, 2000.) The report stated, "A new reference sample from Lorenzo Birotte should be obtained and analyzed by the casework laboratory." The bottom of the report indicated the technical review had been completed on December 15, 2004 and the administrative review had been completed on December 17, 2004. According to Von Beroldingen, the hit notification report was hand-delivered to the casework unit on December 17, 2004.

On December 23, 2004 casework unit criminalist Lillian Tugado sent an email to Larry Blanton of the LAPD Lab informing him the forensic unknown profiles from C.H.‟s and M.R.‟s cases "hit to each other and also hit to offender Lorenzo Birotte . . . . [¶] To date, we have not received the hit report for [M.R.‟s case], but this case is addressed in the hit report for [C.H.‟s case]. We will issue a formal report once we receive this second hit report."

Blanton, who read Tugado‟s email on December 27, 2004, issued a database hit notification dated December 27, 2004 identifying Birotte as the offender in C.H.‟s case and stating, "This information may be acted upon immediately. A confirmation of this hit should be completed prior to trial. Cold hit protocol requires that a new reference sample be obtained from the convicted offender. Once this sample has been booked, please contact the Serology/DNA Unit . . . and request a Cold Hit confirmation." The notification prepared by Blanton identified December 27, 2004 as the date of notification by the Department of Justice.

Tugado prepared a "Supplemental Report" dated December 23, 2004 stating, "As previously reported, the short tandem repeat (STR) profiles for these two cases were submitted to the Combined DNA Index System (CODIS). A thirteen-locus match . . . was identified between these two case evidence profiles and felon Lorenzo Birotte . . . . See the attached reports DNH-1217-04 [the case number for C.H.] and DNH-1218-04 [the case number for M.R.], both dated December 14, 2004. [¶] A new reference sample from Lorenzo Birotte needs to be submitted to the BFS Jan Bashinski DNA Laboratory for confirmation." The bottom of the report indicates the technical and administrative reviews were both completed on December 30, 2004. The report was mailed to the Los Angeles Police Department on January 5, 2005.

In November 2005 a new DNA sample from Birotte was analyzed and matched to the forensic unknown profile generated from C.H.‟s rape kit.

3. The Criminal Complaint, Information and Amended Information

In late December 2005 Birotte was charged by criminal complaint with committing one count of forcible rape (§ 261, subd. (a)(2)), one count of forcible oral copulation (§ 288a, subd. (c)(2)) and one count of forcible sodomy (§ 286, subd. (c)(2)).*fn8 The complaint alleged Birotte had kidnapped C.H., which substantially increased the risk of harm, and had personally used a dangerous or deadly weapon in the commission of the offenses. The complaint further alleged the statute of limitations had been extended pursuant to former section 803, subdivision (h)(1) (current section 803(g)(1)).

Following the preliminary hearing, an information was filed on July 5, 2006 alleging the same counts as contained in the criminal complaint. Birotte pleaded not guilty and denied the special allegations. An amended information was filed on May 15, 2008 that alleged December 27, 2004 as the date Birotte‟s identity was conclusively established by DNA testing and stated the complaint had been filed within one year of that date. Birotte again pleaded not guilty and denied the special allegations.*fn9 An arrest warrant was issued on December 29, 2005.

4. The Trial Court's Denial of Birotte's Motion to Dismiss

On September 9, 2005 Birotte filed a motion to dismiss the case as untimely filed. At the hearing on the motion Birotte argued his identity was conclusively established by DNA testing when the hit notification report was generated on December 14, 2004 identifying him as the suspect by name. The People argued Birotte‟s identity was not conclusively established until December 30, 2004, after both the casework unit and the CODIS unit of the DOJ Lab had completed their investigation and reports, including the technical and administrative reviews, notwithstanding the LAPD Lab had been notified of Birotte‟s identity on December 23, 2004.*fn10

The trial court denied the motion, finding the statute of limitations began to run on December 27, 2004: "That is the date that the Department of Justice sent a notification to the Los Angeles Police Department of a database hit identifying Mr. Birotte as a suspect in this case. . . . In my view that is the date on which the statute of limitations started to run as that is the day on which the Department of Justice lab finished all their evaluation, and, therefore, on that date, in my view that is the date that the identity of the suspect was conclusively established pursuant to Penal Code section 803(g)(1). I do concur with defense counsel . . . that there was no more analysis on Mr. Birotte‟s sample after the date of December [14, 2004]; . . . however, . . . after the date of December [14, 2004], there was both a technical and administrative review of Mr. Birotte‟s sample to check the sample against other suspects in the Department of Justice database. In my view the . . . technical and administrative review of the sample is part of the analysis in this case, and in my view the identity of the suspect was not conclusively established until after the technical and administrative reviews were completed in this case, which in my view happened on the date of December the 27th, 2004."*fn11

5. The Instant Petition

On January 28, 2009, with trial scheduled to begin on January 30, 2009, Birotte petitioned this court for a writ of mandate directing the trial court to dismiss the charges against him. On January 29, 2009 we issued a stay of proceedings and on February 11, 2009 an order to show cause why the requested relief should not be granted.

DISCUSSION

Section 803(g)(1) provides, "Notwithstanding any other limitation of time described in this chapter, a criminal complaint may be filed within one year of the date on which the identity of the suspect is conclusively established by DNA testing, if both of the following conditions are met: [¶] (A) The crime is one that is described in subdivision (c) of Section 290. [¶] (B) The offense was committed prior to January 1, 2001, and biological evidence collected in connection with the offense is analyzed for DNA type no later than January 1, 2004, or the offense was committed on or after January 1, 2001, and biological evidence collected in connection with the offense is analyzed for DNA type no later than two years from the date of the offense."*fn12

Birotte argues his identity as the perpetrator of the August 1995 sexual attack on C.H. was "conclusively established by DNA testing" on December 14, 2004, the date of the initial hit notification report from a CODIS unit criminalist to the casework unit director that identified Birotte by name as the offender matched to the forensic unknown profile from C.H.‟s rape kit. According to Birotte, the additional technical and administrative reviews performed as part of the CODIS unit‟s protocols to verify the match or any analyses completed by the casework unit do not constitute DNA testing and, therefore, do not extend the trigger date for the running of the one-year limitations period.

The People, on the other hand, insist the initial December 14, 2004 match of Birotte‟s DNA to the forensic unknown profile from the rape kit did not conclusively establish Birotte‟s identity within the meaning of section 803(g)(1). They argue a suspect‟s identity is conclusively established by DNA testing only after qualified laboratory staff completely evaluate and review the data. At various times the People have asserted that review process was not completed until December 27, 2004, December 30, 2004 or January 5, 2005*fn13 and in this writ proceeding contend Birotte‟s identity was conclusively established on December 30, 2004 when the DOJ Lab completed its technical and administrative review of the final report regarding the case.

As we discuss in the following two sections, based on the language of section 803(g)(1) itself, as well as its legislative history, we agree with the People that, for test results to conclusively establish a suspect‟s identity, the initial, automated computer match must at least be evaluated and verified by trained criminalists following established laboratory protocols.*fn14

Having resolved the issue presented by Birotte‟s petition, at least in its most limited form, we normally would not proceed further. Nonetheless, because of its potential significance for future cases-and recognizing the Legislature may want to reconsider the matter or clarify its intent-we also explain the term "conclusively established by DNA testing" within the meaning of section 803(g)(1) is reasonably construed to require much more than administrative and technical verification at the DOJ Lab-that is, to conclude the additional one-year limitations period does not begin until a biological sample has been obtained with a sufficient chain of custody for the DNA profile developed from it to be admissible in evidence, that DNA profile has been matched to a DNA profile developed from crime scene evidence and statistical analyses have been performed that verify the suspect is the source of the evidentiary profile.

1. The Plain Language of Section 803(g)(1) Requires More Than an Initial Match or Positive Identification of a Suspect's DNA with Crime Scene Evidence

By requiring a suspect‟s identity be "conclusively established" by DNA testing, rather than there simply be a positive identification or match, section 803(g)(1) creates a trigger event dependent on an exceedingly high level of certainty. Although the statute itself does not define the term "conclusively established," in other contexts it has been equated to "indisputable" or free of any doubt and held to require "uncontroverted and conclusive evidence." (See, e.g., Flatley v. Mauro (2006) 39 Cal.4th 299, 320 [discussing when evidence conclusively establishes that assertedly protected speech or petition activity was illegal as a matter of law for purpose of a special motion to strike under Code Civ. Proc., § 425.16]; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 286 [if there is a genuine issue that turns on proper inferences to be drawn from indisputable facts, then the question of illegality within the meaning of Code Civ. Proc., § 425.18, subd. (h)(2), is not conclusively established]; American Internat. Specialty Lines Ins. Co v. Continental Casualty Ins. Co. (2006) 142 Cal.App.4th 1342, 1370 [reviewing case law discussing evidence required to extinguish insurer‟s duty to defend; "the insurer must "produce in court undisputed extrinsic evidence which conclusively establishes that there is no potential for coverage‟"].)

Giving the words actually used by the Legislature their plain and commonsense meaning, for test results to conclusively establish a suspect‟s identity, rather than merely indicate a positive identification, they must be based on more than raw data or tentative or preliminary conclusions. (See People v. Loeun (1997) 17 Cal.4th 1, 9 ["[i]n interpreting statutes, we follow the Legislature‟s intent, as exhibited by the plain meaning of the actual words of the law"]; Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 993 [actual words of a statute cannot be ignored].) The CODIS unit performed the first level of analysis; the casework unit, with more complete data for the forensic unknown profile, performed the second level of analysis.*fn15 The technical and administrative reviews by trained criminalists, performed in accordance with established laboratory protocols at both levels of analysis, were an integral and necessary part of the process to conclusively establish Birotte‟s identity as the suspect in the C.H. sexual assaults. As Von Beroldingen testified, given the tremendous volume of biological samples processed by the CODIS unit, mistakes-including clerical mistakes with respect to the accuracy of underlying data-can be made. Reviews intended to prevent an erroneous identification with significant consequences for the wrongly accused are not only reasonable, but to be expected.

Birotte‟s argument the additional one-year limitations period begins with the generation of the initial hit notification and that anything done to confirm that information is investigation, not DNA testing, which should occur after the one-year period is triggered, puts an unduly restricted interpretation on the Legislature‟s use of the phrase "by DNA testing." Read in context, the phrase serves to identify the means of identification, that is by DNA testing, not, for example by analysis of fingerprints or some other method, not to circumscribe the procedures performed to "conclusively establish" the suspect‟s identity.

2. The Legislative History of Former Section 803, Subdivision (h)(1) (now Section 803(g)(1)) Supports the Conclusion the One-year Limitations Period Is Not Triggered by an Initial Match or "Link"

The legislative history of Assembly Bill No. 1742 (2000-2001 Reg. Sess.), which added section 803(g)(1) to the Penal Code, strongly supports the conclusion, based on the language of the statute itself, the Legislature intended that the one-year limitation period would not begin to run at least until all laboratory analyses, including technical and administrative reviews, are completed.*fn16

Until 2001 the statute of limitations for many sexual offenses, including the crimes with which Birotte is charged, was six years. (In re White (2008) 163 Cal.App.4th 1576, 1579-1580.) As originally introduced on January 10, 2000 by Assemblymember Lou Correa, Assembly Bill No. 1742 (2000-2001 Reg. Sess.) extended the limitations period for certain sexual offenses to eight years. The contents of that original bill were replaced by amendment on March 9, 2000, which eliminated the blanket two-year extension of the limitations period and instead created a new one-year limitations period for specified sexual offenses in instances in which DNA testing identified a suspect. The proposed new subdivision (h) of section 803 provided: "Notwithstanding any other limitation of time described in this chapter, prosecution for an offense described in subparagraph (A) of paragraph (2) of subdivision (a) of Section 290 may be commenced within one year of the date on which forensic deoxyribonucleic acid (DNA) testing that links a named suspect to the offense is completed by the laboratory testing the evidence." (Assem. Bill No. 1742 (2000-2001 Reg. Sess.) as amended Mar. 9, 2000, § 1.)

Assemblymember Correa explained the amended bill was intended to address "a number of problems with the collection and analysis of biological materials from persons compelled to provide samples pursuant to the" DNA Data Bank Act and "an approximate two-year backlog of samples in [the Department of Justice‟s] possession that remain to be tested. . . . [¶] This bill is necessary to ensure that cases solved through the use of genetic profiling are not barred by the current six-year statute of limitations while the State of California is in the process of modernizing its crime laboratories. By creating a limited exception in the most serious sexual assault cases where the only means of identifying the perpetrator is through forensic DNA technology, it will enable law enforcement to take full advantage of this powerful new tool. AB 1742 will ensure that we solve the most heinous of crimes while maintaining the balance between vigorous enforcement and the traditional policy reasons underlying the statute of limitations." (Assem. Com. on Public Safety on Assem. Bill No. 1742 (2000-2001 Res. Sess.) as introduced, pp. 2-3 [proposed amendment in committee].)

The Senate Public Safety Committee report for a June 27, 2000 hearing on the amended bill described the backlog problem as involving both the maintenance of the offender database and the processing of rape kits to populate the forensic unknown profile database. At that time the backlog of rape kits exceeded 10,000. (Sen. Com. on Public Safety on Assem. Bill No. 1742 (2000-2001 Res. Sess.) as amended Mar. 9, 2000, p. 8.) The report also raised several concerns about the amended bill as then drafted: "This bill may inadvertently remove the general imperative imposed by statutes of limitations for the quick and timely prosecution of sex offenses. As now drafted, this bill essentially would allow the commencement of sex offense prosecutions to float until the date a DNA test links a named suspect to an offense. [¶] Although intended to ensure that sex crime prosecutions are not precluded by the lapse of an arbitrary limitations period, by attaching the limitations period to the date of a DNA test, this bill would remove a powerful incentive for swift and intensive crime investigations-the limitations period. In fact, in one of the cases used as an example to support this bill, DNA testing finally occurred nearly seven years after a sex crime was committed, and only when law enforcement, pressed by the crime survivor, believed the statute of limitations was about to expire." (Id. at p. 12.) On the other hand, the report noted, "Some proponents submit that, as a matter of public policy, the sex offenses covered by [the bill] constitute the type of very serious offense that warrants prosecution without any time limitations[,]" as is the case for murder and aggravated forms of kidnapping. (Id. at p. 7.)

The report also posed a number of questions for consideration, including whether law enforcement should "be required to routinely test rape kits within the limitations period" and whether, "if the DNA testing backlog is expected to be current within two years, is this bill necessary." (Sen. Com. on Public Safety on Assem. Bill No. 1742 (2000-2001 Res. Sess.) as amended Mar. 9, 2000, pp. 10-11.) The report also proposed, "[a]s an alternative to the "floating‟ limitations proposed by this bill, the author and/or the Committee may wish to consider extending the period to eight or ten years."*fn17 (Id. at p. 12.)

Assembly Bill No. 1742 was again amended on July 6, 2000, shortly after the Senate Public Safety Committee hearing. Changes included extending the statute of limitations for certain sexual offenses generally to 10 years and, most significantly for our analysis, substituting for the original language "within one year of the date on which forensic deoxyribonucleic acid (DNA) testing that links a named suspect to the offense is completed by the laboratory testing the evidence" the language now found in section 803(g)(1), "within . . . one year of the date on which the identity of the suspect is conclusively established by DNA testing." The July 6, 2000 amendments also added the requirements now found in section 803, subdivision (g)(1)(A) and (B) regarding the timely processing of crime scene forensic evidence. (Assem. Bill No. 1742 (2000-2001 Reg. Sess.) as amended Jul. 6, 2000, § 1.) The bill was passed by the Senate on August 10, 2000 and by the Assembly on August 18, 2000. The Governor signed the legislation on August 24, 2000.

As discussed, standing alone the Legislature‟s use of the term "conclusively established by DNA testing" necessarily requires something more than a positive identification or initial match of a suspect‟s DNA with crime scene evidence. That conclusion as to the Legislature‟s intent is strongly reinforced by the provision originally requiring only that the named suspect be "link[ed]" to the offense. In response to criticism, as reflected in the Senate Public Safety Committee report, including that the bill failed to define what "links" a suspect by DNA testing or when testing is "completed," the trigger date for the one-year window was changed to after "the identity of the suspect is conclusively established by DNA testing," a standard clearly intended to be more stringent than simply a link (or a match) to the suspect by DNA testing.

3. Additional Analyses That May Be Required To Conclusively Establish a Suspect's Identity by DNA Testing

Because the criminal complaint charging Birotte with rape and other sexual assaults was filed within one year of the date the DOJ Lab completed its technical and administrative reviews of the final report identifying him as a suspect, we need not resolve whether that date or some later one triggers section 803(g)(1)‟s one-year limitations period. Having considered the issue, however, we believe it appropriate to identify the bases for a more expansive interpretation of the statute.

a. Chain of Custody

As discussed, one of the criticisms of Assembly Bill No. 1742 (2000-2001 Reg. Sess.), as amended March 9, 2000, which proposed a new one-year limitations period for specified sexual offenses triggered by the laboratory‟s completion of DNA testing that "links" a named suspect to the offense was that it created chain of custody issues. (See Sen. Com. on Public Safety on Assem. Bill No. 1742 (2000-2001 Res. Sess.) as amended Mar. 9, 2000, p. 14; see also fn. 15, above.) In response to this and other criticism, the trigger event was changed to "the identity of the suspect is conclusively established by DNA testing." If the test results are not admissible in evidence, however, they would not seem, by any reasonable interpretation of the language used, to "conclusively establish" the suspect‟s identity.

In addition to evaluation and verification of the computer-generated match itself, therefore, section 803(g)(1) appears to require the DNA testing data be based on a sample obtained from the suspect with a sufficient chain of custody to permit the People to lay a proper foundation for the evidence: """The burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [¶] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence."‟" (People v. Wallace (2008) 44 Cal.4th 1032, 1061.)

At the hearing on Birotte‟s motion to dismiss, DOJ Lab criminalist manager Von Beroldingen testified the initial DNA sample from which the offender DNA profile is created and uploaded into CODIS is not collected from an individual arrested for, or convicted of, one of the specified sex offenses in a manner that would ensure the results are admissible at trial.*fn18 As a result, after the hit notification report has been generated, a new sample is collected from the person identified and that sample is maintained under controls that ensure a chain of custody can be proved at trial. This new sample is then analyzed by the same laboratory that generated the forensic unknown profile, a process that not only serves to establish a proper chain of custody but also creates an independent verification by a different laboratory from the CODIS unit that initially generated the offender profile.

Consistent with this testimony and the DOJ Lab policies, the December 14, 2004 initial hit notification report, the December 23, 2004 supplemental report prepared by Tugado and the hit notification prepared by Blanton on December 27, 2004 all stated a new reference sample would have to be collected from Birotte and analyzed. That sample was not collected until late 2005, and the DNA testing of this sample apparently occurred only a few weeks before the criminal complaint was filed.

b. Statistical Analyses

Collection of a DNA sample utilizing procedures that ensure a proper chain of custody and matching the DNA profile developed from that sample to the forensic unknown profile, however, may still not produce evidence that conclusively establishes the suspect‟s identity by DNA testing. Approximately two years before former section 803, subdivision (h)(1) (current section 803(g)(1)) was enacted, in People v. Venegas (1998) 18 Cal.4th 47, the Supreme Court considered a number of complex questions concerning the admissibility of DNA evidence and addressed the need for statistical probability calculations in addition to the mere matching of DNA profiles: "A determination that the DNA profile of an evidentiary sample matches the profile of a suspect establishes that the two profiles are consistent, but the determination would be of little significance if the evidentiary profile also matched that of many or most other human beings. The evidentiary weight of the match with the suspect is therefore inversely dependent upon the statistical probability of a similar match with the profile of a person drawn at random from the relevant population." (Id. at p. 82; see People v. Johnson (2006) 139 Cal.App.4th 1135, 1147, fn. omitted ["[W]hile the fact of a match itself is relevant because it means the suspect could be the perpetrator, the probability that he is the perpetrator depends on the frequency with which the genetic profile appears in the population of possible perpetrators, i.e., the rarity of the perpetrator‟s profile in the population. [Citation.] The rarer the genetic profile, the more likely the suspect is the source of the evidentiary sample."].)*fn19

We need not delve any more deeply into the complex statistical issues considered in People v. Venegas, supra, 18 Cal.4th 47 and People v. Soto (1999) 21 Cal.4th 512 or the more recent case of People v. Nelson (2008) 43 Cal.4th 1242 addressing the use of statistical analysis in "cold hit" cases. (See, e.g., Nelson, at p. 1266 [""the picture is more complicated when the defendant has been located through a database search‟"].) Rather, it is enough to note at the time former section 803, subdivision (h)(1) (now section 803 (g)(1)) was initially adopted, it was well-established by controlling case law that evidence of a DNA match, while perhaps relevant, could not be considered as conclusively establishing the identity of the defendant (or suspect) absent evidence of the statistical probability of a similar match with the profile of a person drawn at random from the relevant population. No such statistical analyses confirming it was highly unlikely anyone other than Birotte was the source of the forensic unknown profile occurred in this case before the criminal complaint was filed.

4. The Concern for Possible Prosecutorial Manipulation of the Limitations Period

The People acknowledged at oral argument that matching a DNA profile obtained from a suspect to the forensic unknown profile utilizing procedures that ensure a proper chain of custody for the DNA samples frequently does not occur until the suspect has been charged with the crime. Similarly, appropriate statistical analyses that confirm the suspect is the source of the forensic unknown profile are often performed only after the filing of the criminal complaint, close to the date of trial. Thus, as Birotte argues, to interpret the term "conclusively established by DNA testing" to require the completion of technical and administrative reviews at both the CODIS and the casework units of the DOJ Lab, let alone construing that term to also require chain-of-custody matching and statistical analyses, creates what is essentially a floating trigger for the one-year limitations period and provides the People with a largely unfettered ability to delay prosecution of sexual offenders.

The concerns Birotte articulates are legitimate. The same concerns, however, were articulated in the Senate Public Safety Committee report. Yet the Legislature enacted former section 803, subdivision (h)(1), and, in fact, addressed some of the criticism by including the condition that the forensic DNA analysis must be completed within specified periods. (See § 803, subd. (g)(1)(A) & (B).) Indeed, the Legislature rejected the solution proposed in the report of simply extending the statute of limitations to 10 years without any one-year window exception for DNA identification of perpetrators, instead opting to both extend the six-year statute of limitations to 10 years*fn20 and include a one-year window triggered by the suspect‟s conclusive identification by DNA testing. The Legislature thus appears to have made an explicit choice, giving primary significance to the goal of ensuring heinous sex crimes are prosecuted notwithstanding the risk that prosecution could be substantially delayed. To the extent a future Legislature believes it proper to revisit that decision or to amend section 803(g)(1) to make it clear a more restricted construction of "conclusively established by DNA testing" is preferred, it can revise the statutory language to accomplish that result. (See In re Summer H. (2006) 139 Cal.App.4th 1315, 1334; Lopez v. Tulare Joint Union High School Dist. (1995) 34 Cal.App.4th 1302, 1333-1334.)

Until the statutory language is changed, we are bound to interpret it according to its plain meaning, as reinforced by the legislative history we have discussed. In adopting a broad construction of section 803(g)(1), albeit not as broad as the language and legislative history suggest, however, we need not rely solely on the good faith of law enforcement personnel and public prosecutors to ensure the completion date of DNA testing is not improperly manipulated in sexual offense cases. The power of the People to delay prosecution is not entirely without limit. A due process challenge is always available to contest an unjustified delay that impermissibly prejudices a criminal defendant. (See People v. Nelson, supra, 43 Cal.4th at p. 1250 [""right of due process protects a criminal defendant‟s interest in fair adjudication by preventing unjustified delays that weaken the defense through the dimming of memories, the death or disappearance of witnesses, and the loss or destruction of material physical evidence‟"]; see also Scherling v. Superior Court of Santa Clara County (1978) 22 Cal.3d 493, 507 ["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."].)

DISPOSITION

The petition is denied. The stay of proceedings issued on January 29, 2009 is vacated.

I concur: JACKSON, J.

ZELON, J., Concurring and Dissenting

I join in holding that the petition should be denied. The statute of limitations in this case was not triggered until the Department of Justice Lab completed its review of the case in accordance with its own protocols. However, the People have not asserted that any later statutory date should be established, and the record before this Court requires no further conclusions. The additional guidance offered by the majority reaches conclusions concerning legislative intent and statutory interpretation with which I cannot concur, because I believe the mechanism it establishes creates serious obstacles to meaningful implementation of the statute of limitations. I respectfully dissent from that portion of the opinion.

The Statute Does Not Require Admissible Evidence to Trigger the Statutory Period

The majority interprets the term "conclusively established" on its face to require "more than raw data or tentative or preliminary conclusions," a conclusion with which I agree. However, I cannot share the further conclusion that compliance with established scientific protocols is insufficient to meet the statutory requirements. That additional interpretation is drawn from rules for the admissibility of evidence at trial, or at pre-trial evidentiary hearings, not from procedures normally followed during the period of investigation prior to the filing of charges in a criminal proceeding.

As the majority acknowledges, the Legislature was aware of "the traditional policy reasons underlying the statute of limitations," but was also concerned that the backlog of untested biological evidence existing in 2000 would result in prosecutions being barred unless an extension of the existing statutory periods was achieved. As initially introduced, Assembly Bill 1742 set a one year statutory period commencing on the date on which DNA testing "that links a named suspect to the offense is completed by the laboratory testing the evidence." (Assem. Bill No. 1742 (2000-2001 Reg. Sess.) as amended Mar. 9, 2000, § 1.) The report from the Senate Committee on Public Safety which accompanied this version of the bill described it as providing a one-year window to be opened on the date on which DNA testing was completed that linked a suspect to the offense. It concluded "AB 1742 will ensure that we solve the most heinous of crimes while maintaining the balance between vigorous enforcement and the traditional policy reasons underlying the statute of limitations." (Ibid.)

In June 2000, the Senate Committee on Public Safety issued a detailed report, discussing at length the purpose of statutes of limitation. In part, it reported: "The United States Supreme Court has stated that statutes of limitations are the primary guarantee against bringing overly stale criminal charges. United States v. Ewell (1966) 383 U.S. 116, 122. There is a measure of predictability provided by specifying a limit beyond which there is an irrebuttable presumption that a defendant‟s right to a fair trial would be prejudiced. Such laws reflect legislative assessments of relative interests of the State and the defendant in administering and receiving justice."

The report did suggest that some commentators believed there should be no statute of limitations on crimes covered by the statute, but also noted that commentators had raised concerns about the open-ended nature of potential prosecutions and expressly discussed the fact that the legislation could have the unintended consequence of removing the limitations period as an incentive for swift investigation of crime. The report concluded this discussion by stating "Under California law, the criminal justice system, victims and the community as a whole have an interest in not only seeing these cases eventually prosecuted, but also in seeing them prosecuted in a timely manner. [Citing Pen. Code § 1050, subd. (a) [duty of courts and all counsel to expedite proceedings to the greatest degree consistent with the ends of justice].]"

In July 2000, the language of the bill was amended to include the "conclusively established" language at issue here. In the Senate Rules Committee Analysis for the amended bill, no reason was stated for the change in language; in fact, the report was silent as to the fact that the change was made. The digest, as it had for the earlier version of the statute, referred to the linkage requirement, not to the new language. In the body of the report, the justification for the statute remained largely unchanged. The argument in support remained, as it had throughout the process, linked to the backlog of samples and the need to modernize the state‟s crime laboratories without barring the prosecution of solved cases during the time needed to rectify the situation. In the face of this consistently articulated rationale, and the resounding silence concerning the existence and meaning of the change in language, I cannot find the legislative intent to necessary to allow prosecuting agencies to move normal trial preparation from the period after a defendant is charged to the period before the statute commences. To base such a change on unexplained silence at the expense of the policy underlying the statute of limitations detailed in the legislative reports seems inconsistent with the stated intent to balance the competing interests inherent in statutes of limitations.

The construction of the language adopted by the majority in effect requires that trial preparation with respect to the DNA evidence be completed prior to the trigger date for the statute of limitations. And while the legislation, as a protective matter, requires prompt DNA testing, it imposes no such requirement on trial preparation. If the intent was that such activity by the prosecuting authority would occur within the period between the triggering of the statute and the trial, that silence is logical: no explicit requirement would be necessary. If the prosecutor was unable to marshal and be prepared to introduce at trial the necessary admissible evidence, the prosecution would be unable to go forward. An interpretation moving all of this work, performed out of the sight of any reviewing body and at the pace and timing chosen solely by the prosecuting agency, not only extends the statutory period in an unlimited manner, but also leaves the defendant without the ability to know when the statute has commenced to run. Moreover, this interpretation does not lead to consistency among prosecuting agencies and jurisdictions, leaving instead to the chance determination of when preparation will be completed the important element of elimination of undue delay in giving notice to defendants of charges and an adequate opportunity to prepare a defense.

The additional requirements that the majority opinion would impose appear to be based on a literal reading of the amended statutory language. Such a literal reading, if inconsistent with the overall intent of the Legislature, is not ours to impose. """[i]t is a settled principle of statutory interpretation that language of a statute should not be given a literal meaning if doing so would result in absurd consequences which the Legislature did not intend." [Citations.] Thus, "[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act." [Citation.] Finally, we do not construe statutes in isolation, but rather read every statute "with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness." [Citation.]‟ [Citation.] We must also consider "the object to be achieved and the evil to be prevented by the legislation. [Citations.] [Citation.]" (Horwich v. Superior Court (1999) 21 Cal.4th 272, 276. The literal reading imposed by the majority here results, in practical terms, in a scheme which does not prevent the problem which the legislation addressed: to balance the need to allow testing of potential evidence and prosecutions based on that evidence, with preservation of the rights and duties traditionally preserved by a statute of limitations. And, even if the statute were amenable to the alternative view, "if a statute is amenable to two alternative interpretations, the one that leads to the more reasonable result will be followed." (People v. Gonzalez (2008) 43 Cal.4th 1118, 1126.) In my view, a result consistent with the overall conduct of criminal prosecutions, dividing tasks between the period before and after the statute is triggered, is the more reasonable result, the one most consistent with the reported legislative analysis, and the one which best preserves the critical balance of rights implicated by these cases.

ZELON, J.


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