Ct.App. 4/2 E049135 on Habeas Corpus. San Bernardino County Super. Ct. No. SWHSS700444
The opinion of the court was delivered by: Kennard, J.
At petitioner's 1997 trial for the murder of his wife, the evidence against him was circumstantial. One of many pieces of evidence linking petitioner to the crime was a post-mortem photograph of the victim's hand, depicting an indistinct, crescent-shaped lesion. The prosecution's dental expert stated his opinion that the lesion was a human bite mark. And after comparing the bite mark to the distinctive arrangement of petitioner's lower teeth, the dental expert stated that petitioner's unusual dentition was consistent with the shape of the mark depicted in the photograph, and that he could not exclude petitioner's teeth as a possible source of the mark. According to the expert, petitioner's unusual dentition occurred in only 2 percent or less of the general population. The jury found petitioner guilty as charged. The Court of Appeal upheld the conviction.
In 2007, petitioner sought habeas corpus relief in the San Bernardino County Superior Court, claiming that new evidence established his innocence, and that his murder conviction was based on false evidence given at trial by the prosecution's dental expert. In a declaration supporting the petition, that expert stated that his trial testimony regarding the statistical frequency of petitioner's dentition was not based on scientific data. Moreover, after examining photographs depicting other lesions on the victim's body, the dental expert said he was no longer certain that the lesion on the victim's hand was a bite mark.
Supporting declarations by other dental experts agreed, based on newly available computer technology, that the prosecution's expert had testified inaccurately at trial.
The superior court issued an order to show cause. After an evidentiary hearing, the court granted habeas corpus relief; in the court's view, petitioner had presented new evidence pointing unerringly to his innocence. The Court of Appeal disagreed. We granted petitioner's request for review.
The most significant issue here is whether a conviction is based on "false evidence" (Pen. Code, § 1473, subd. (b)) when it depends in part on the opinion of an expert witness, and posttrial advances in technology have raised doubts about the expert's trial testimony without conclusively proving that testimony to be untrue. We conclude that in such circumstances the expert's trial testimony has not been shown to be "false evidence," but that the information garnered from the technological advances may be presented as newly discovered evidence in support of habeas corpus relief. Habeas corpus relief should be granted only if the new evidence " 'point[s] unerringly to innocence or reduced culpability' " (In re Clark (1993) 5 Cal.4th 750, 766), a showing that petitioner here has not made.
I A. Murder of Pamela Richards
Petitioner and his wife, Pamela, lived in a camper parked on their property in a remote area of San Bernardino County. They used a generator, kept in a small shed, for electricity. To access their home, one had to ascend a steep sand and gravel driveway. The couple kept several dogs on the property to ward off uninvited intruders; they also had several guns, which Pamela knew how to use.
At approximately 11:55 p.m. on August 10, 1993, Eugene Price telephoned the couple's camper in response to a message Pamela had left on his answering machine around 7:00 or 7:30 that evening. Price had a sexual relationship with Pamela, who was planning to move with Price to an apartment in Ventura County. Petitioner answered the telephone call. He sounded stressed and agitated. When Price asked for Pamela, petitioner said she was dead. Price told petitioner to call 911. At 11:58 p.m., petitioner did so.
Because of the remote location of the property, San Bernardino Sheriff's Deputy Mark Nourse did not arrive until shortly after 12:30 a.m. He testified that the property was "pitch black," there were no lights, and there was no moonlight. Petitioner, who was dressed in blue jeans and a blue work shirt, gave this story: He had left work at 11:00 p.m. and arrived at the camper just before midnight. The generator was off when he arrived. The property was dark. The battery in the camper had lost its charge. He did not turn on the generator, and he had no light. He found his wife lying on the ground outside the camper. It was hard for him to see her body in the dark, but he realized she was dead when he rolled her over. He immediately called 911 and then cradled her head in his arms.
Deputy Nourse also said that although it was an overcast night and very dark, and although only half an hour had transpired between petitioner's reported arrival at his property and Nourse's arrival there, petitioner was able to take the deputy on a detailed tour of the crime scene. Petitioner knew that Pamela's pants were lying next to the generator, and that they had not come off easily, telling the deputy "trust me on this." He knew that her underwear was inside the camper. He knew that her blood was inside the camper on the pillow. He knew that there was "blood on rocks up against the hill" (referring to the rough, upward-sloping terrain to the southwest of the crime scene). He knew that a bloodstained paving stone had been thrown "over the side of the hill" (referring to the rough, downward-sloping terrain to the north of the crime scene). He theorized about what Pamela was doing when her murderer arrived, where the murderer confronted Pamela, and what she did in her defense. And he surmised that the murderer had used a cinderblock to kill Pamela. He also told the deputy: "[A]ll the evidence that relates to this case I already touched and moved trying to figure out how this whole thing happened."
Deputy Nourse described petitioner's demeanor as "very calm, cool, [and] collected," but occasionally petitioner would fall to his knees crying, after which he would get back up and continue talking. To the deputy, it seemed as if petitioner was speaking "like he had rehearsed or was reading from a script." Petitioner's dogs barked, growled, and snarled at Deputy Nourse. Petitioner remarked that the dogs had failed to protect his wife from her murderer. He did not report anything missing from the premises.
Deputy Nourse checked Pamela's body. It was neither warm nor cold. Her arm was pliable. Her blood was still wet, bright red, and in a puddle; it had not coagulated or soaked into the sandy soil. She appeared to have just died.
Sheriff's investigators secured the crime scene. In the morning, they conducted a thorough investigation. Pamela was lying on her back on the ground outside the camper, covered with a sleeping bag. She was naked from the waist down, except for her socks. Her head was crushed, an eye hanging out. A bloody cinderblock was lying near her head, and blood spatters were on the ground. Petitioner had scattered bloodstains on his pants and shoes. From a study of all the footprints and tire tracks that were discernible in the soft sand and gravel, it did not appear that anyone had been present except petitioner, Pamela, and the investigators.
Investigators found a note in Pamela's purse in which petitioner proposed a division of their assets and personal property. Petitioner and his wife had been having financial and marital difficulties, and both had sexual relationships outside the marriage.
DNA testing established that the bloodstains on petitioner's pants and shoes belonged to Pamela. A criminalist determined that the stains were from blood spatter, not from drips or contact, indicating that the blood hit petitioner's pants and shoes when Pamela's skull was smashed.
An autopsy determined that Pamela had been strangled. The strangling was sufficient by itself to cause her death. In addition, her skull was smashed. That injury was also sufficient to cause her death. There was no evidence of sexual assault.
The pathologist who performed the autopsy severed some of Pamela's fingertips from her body for testing. Daniel Gregonis, a criminalist, later examined the severed fingertips under a stereomicroscope and noticed blue cotton fibers wedged deep in a crack of a broken fingernail. A broken fragment apparently torn from the same fingernail was found on the ground at the crime scene, suggesting that the fingernail broke during Pamela's struggle with her assailant. The criminalist examined the blue cotton shirt petitioner wore on the night of the murder, and he concluded that the blue shirt fibers were indistinguishable from the fibers caught in the crack in Pamela's broken fingernail. The same fibers were not, however, mentioned in the report of Craig Ogino, another criminalist who testified for the prosecution at trial and who may have examined the same fingertips.
The time clock at petitioner's work indicated that he had left there at 11:03 p.m. on the night of the murder. A few weeks after Pamela's murder, a sheriff's homicide investigator went to petitioner's place of employment. The investigator left petitioner's workplace at 11:03 p.m., walked to his car, and then drove at the speed of traffic (60-70 miles per hour). He arrived at petitioner's residence at 11:47 p.m. If on the night of the murder petitioner also arrived home at 11:47 p.m., then he had been at home for 11 minutes when he called 911.
A homicide detective interviewed petitioner on several occasions after Pamela's murder. Petitioner's statements were generally consistent with what he had earlier told Deputy Nourse, who responded to petitioner's 911 call.
B. Petitioner's Trial and Conviction
Petitioner was charged with murder. (Pen. Code, § 187.) His first trial ended in a mistrial after the jury was unable to reach a verdict. His second trial was aborted before a jury was selected, when the trial court recused itself. His third trial, like his first, ended in a mistrial after the jury could not reach a verdict.
At petitioner's fourth trial, the prosecution presented the evidence described in part I.A., ante. In addition, the prosecution for the first time presented expert testimony by a forensic dentist, Dr. Norman D. Sperber. Dr. Sperber described a unique feature of petitioner's lower teeth: The lower right canine tooth was out of alignment with the other teeth and had not emerged fully from the gum. Dr. Sperber testified, based solely on his experience as a practicing dentist, and expressly without the benefit of any scientific studies, that "it might be one or two or less" out of a hundred people who would have petitioner's dental irregularity. After visually comparing a photograph of an indistinct crescent-shaped lesion on murder victim Pamela's hand to a model of petitioner's lower teeth, Dr. Sperber stated his opinion that the lesion was a human bite mark, and that petitioner's unusual dentition was "consistent with" the bite mark. In the photograph, the lesion appears only as a reddening and bruising of the surface tissues; Pamela's skin is not broken, and it is difficult to identify individual marks that might be teeth marks.
The defense at trial presented testimony from several witnesses who said that both petitioner and Pamela seemed "fine" and "normal" on the day of the murder, although Pamela's brother testified that Pamela had told him she and petitioner had been arguing.
In addition, the defense presented evidence that Pamela had already been dead for some time when petitioner arrived home on the night of the murder. Dr. Griffith Thomas, a forensic pathologist, testified about the factors from which the time of death can be determined. In his view, the time of Pamela's death was uncertain, but many of her contusions occurred several hours before she died.
In regard to the supposed bite mark on Pamela's hand, Dr. Gregory S. Golden, an expert in forensic dentistry, testified for the defense that in a brief review of 15 "study models" of teeth in his office, he found five models that were "consistent with" the mark. In his view, the bite-mark evidence was inconclusive and should be disregarded, in part because of the angular distortion in the photograph of the mark. On cross-examination, Dr. Golden agreed with Dr. Sperber's estimate that petitioner's displaced canine tooth occurred in only about 2 percent of the general population.
Finally, defense witness Dean M. Gialamas, a senior criminalist with the Los Angeles County Sheriff's Department, testified that the scattered bloodstains on the clothes petitioner was wearing on the night of Pamela's murder were contact stains, not spatter stains, and they were more consistent with petitioner's story that he cradled Pamela's dead body than with the prosecution's theory that petitioner was the killer.
The jury found petitioner guilty of first degree murder of his wife, Pamela. (Pen. Code, § 187, subd. (a).) The trial court sentenced petitioner to 25 years to life in state prison. The judgment was affirmed by the Court of Appeal.
C. Habeas Corpus Proceeding
In 2007, petitioner sought habeas corpus relief in the San Bernardino County Superior Court, asserting that his 1997 murder conviction was based on false evidence, and that new evidence unerringly established his innocence. Among the voluminous exhibits supporting the petition was a declaration from Forensic Dentist Sperber, discussing his statement at trial that only 1 or 2 percent of the population had petitioner's dental irregularity. Dr. Sperber's declaration stated: "These percentages were based on my own experience and were not scientifically accurate." Concerning the lesion on murder victim Pamela's hand, the declaration added: "With the benefit of all of the photographs [of the crime scene and Pamela's injuries], and with my added experience, I would not now testify as I did in 1997," and "I cannot now say with certainty that the injury on the victim's hand is a human bite mark injury."
Also supporting the petition were declarations and reports by other experts in forensic dentistry. The declaration of Dr. Golden, who had testified for the defense at trial, said that he had "enlarged the image [of murder victim Pamela's hand lesion] to life-size," and that after comparing the enlarged image to petitioner's teeth, he "would tend to exclude [petitioner] as the suspected biter." The declaration of Dr. Charles M. Bowers described the process by which he and Dr. Raymond J. Johansen had removed angular distortion from the photograph of Pamela's hand lesion, thereby permitting a more accurate comparison between the hand lesion and petitioner's lower teeth. According to Dr. Bowers, "[t]he new scientific methods demonstrably contradict the conclusion at trial that [petitioner] could not be ruled out as a suspected biter." Dr. Bowers also criticized the methodology used by Dr. Sperber at petitioner's trial. In an earlier written report, Dr. Bowers said that there is "significant doubt that the hand injury is even a bitemark."
The superior court issued an order to show cause and held an evidentiary hearing on the habeas corpus petition. The court heard testimony from Dr. Sperber (the prosecution's forensic dentistry witness at trial) and from the other dental experts who had submitted declarations and reports in support of habeas corpus relief. Dr. Sperber discussed the points he had made in his posttrial declaration. He also described the angular distortion in the photograph of the lesion on Pamela's hand, and he examined photographs depicting other lesions on Pamela's body. Referring to the photograph of the lesion on Pamela's hand, he said: "I don't know for sure that . . . that photograph depicts a bite mark." Dr. Sperber added: "My opinion today is that [petitioner's] teeth . . . are not consistent with the lesion on the hand." Dr. Golden likewise confirmed the points he had made in his declaration. He also described the availability of new computer technology allowing him to remove angular distortion from photographs. He concluded that the lesion on Pamela's hand might have been from a dog bite or some other source; in any case, he "would tend to rule out Mr. Richards . . . as the suspected biter."
Drs. Bowers and Johansen testified in detail about the process by which they digitally altered the photograph of Pamela's hand to remove angular distortion. Drs. Bowers and Johansen, experts in this process, have published articles and a book describing the use of this process in forensic dentistry. The technique was first used in 1996 or 1997 by a single dentist in Canada, after which Drs. Bowers and Johansen further developed the technique, which has since become accepted in the field of forensic dentistry.
Dr. Johansen said that he removed the angular distortion from the photograph of Pamela's hand and then compared the corrected photograph to "overlays" depicting petitioner's lower and upper teeth. He also examined photographs of wire-mesh fencing material found on the ground near Pamela's body. He concluded that petitioner's lower teeth did not match the lesion on Pamela's hand. The upper teeth matched the lesion in some places, but not others. Dr. Johansen could not exclude petitioner's teeth as a possible source of the lesion, but in his opinion it was just as likely that the indistinct lesion was caused by the fencing material as it was by petitioner's teeth. But Dr. Johansen conceded on cross-examination that he had removed angular distortion from the same photograph in 2000, concluding at that time that the lesion was a human bite mark that was consistent with petitioner's teeth.
Dr. Bowers testified that he likewise removed the angular distortion from the photograph of murder victim Pamela's hand and compared the corrected photograph to an "overlay" of petitioner's lower teeth. He found no match. After examining photographs of other lesions on Pamela's body, Dr. Bowers doubted whether the hand lesion was a human bite mark.
Other evidence presented in support of the habeas corpus petition indicated that the blue fibers found embedded in a crack of Pamela's broken fingernail might not have been present at the time of the autopsy. No blue fibers were visible in a still photograph that was taken during the autopsy, nor were they visible when the autopsy photograph was digitally altered to increase color saturation. By contrast, the blue fibers were visible in a still photograph taken from a video recording of the postautopsy testing of Pamela's fingertips.
In addition, a two-centimeter-long hair was found under one of Pamela's long artificial fingernails. A new type of DNA testing revealed that this hair did not come from Pamela or from petitioner, and the district attorney did not dispute those DNA test results. Patricia Zajac, a professor of criminal justice at California State University, East Bay and a criminalist, reviewed the laboratory notes and other records in the case. She testified that in her opinion the hair was not "historical," by which she meant that in her view its placement was somehow related to the violence that resulted in Pamela's death. Professor Zajac also testified that although the hair had a mature root and had fallen out naturally (or was ready to do so), that fact did not undermine her conclusion that the hair under Pamela's fingernail was related to the crime.
Finally, a new type of DNA testing indicated that the bloodstained paving stone that -- along with a cinderblock -- may have been used to smash Pamela's skull had trace DNA from one or more male persons, none of whom was petitioner. Pamela's DNA, however, was the primary DNA on the paving stone. The ratio of the male DNA to Pamela's DNA was 1 to 10 (in one location) and 1 to 6 (in another location). Again, the district attorney did not dispute those DNA test results. In addition, the male DNA was located on the paving stone in a place near where Daniel Gregonis, a criminalist in the sheriff's department, had earlier expected he might find the DNA of the murderer.
The district attorney called Gregonis as a witness. Gregonis and another criminalist, Craig Ogino, had examined "scrapings" from Pamela's fingernails. These scrapings included a dark animal hair and also the two-centimeter-long human hair that, according to petitioner's DNA testing, did not come from either Pamela or from petitioner. Because of the length of Pamela's artificial fingernails, Gregonis was of the view that the human hair might have been lodged under Pamela's fingernail for a long time without being noticed, and he therefore concluded that the hair might not have been related to the crime. The parties stipulated that criminalist Ogino would testify along similar lines.
Gregonis also discussed the male DNA found on the bloodstained paving stone that might have been used to kill Pamela. He said that the male DNA was present in an amount that was consistent with contamination that could have occurred in the courtroom, although it also could have been already present on the stone when the stone was stained with Pamela's blood.
The superior court granted habeas corpus relief, concluding that the new evidence pointed unerringly to petitioner's innocence. In reaching this conclusion, however, the superior court made very few specific findings of fact. The court ordered that petitioner be remanded for a new trial, but it stayed its decision for 15 court days to allow the district attorney to appeal.
To preserve the status quo, the Court of Appeal stayed proceedings to retry petitioner. After briefing and oral argument, the Court of Appeal vacated the superior court's order granting the petition for a writ of habeas corpus. With regard to petitioner's false evidence claim (challenging the trial testimony of Dr. Sperber regarding the alleged bite mark), the Court of Appeal held that a habeas corpus petitioner does not establish false evidence under Penal Code section 1473's subdivision (b) merely by presenting new expert testimony on how to interpret the evidence offered at the trial. Accordingly, the Court of Appeal concluded that all petitioner's claims were, in effect, new evidence claims, and that the unerring innocence standard applicable to such claims therefore ...