California Court of Appeals, Fourth District, First Division
Cal.Rptr.3d 55] ORIGINAL PROCEEDING in mandate. John M.
Thompson, Judge. Petition granted in part and denied in part.
(San Diego County Super. Ct. No. SCD178329)
[Copyrighted Material Omitted]
McComb, State Public Defender, and AJ Kutchins, Deputy State
Public Defender, for Petitioner.
appearance, for Respondent.
Stephan, District Attorney, Mark A. Amador, Linh Lam, and
Karl Husoe, Deputy District Attorneys, for Real Party in
Petitioner Manuel Bracamontes was sentenced to death in 2005
for the kidnapping and murder of nine-year-old Laura Arroyo.
His automatic appeal is currently pending in the California
Supreme Court. (People v. Bracamontes (S139702, app.
pending).) In anticipation of a future petition for writ of
habeas corpus, Bracamontes filed a motion in the San Diego
County Superior Court to preserve evidence that may be
relevant to such a petition. His motion sought a preservation
order covering relevant physical and documentary evidence in
the hands of the prosecution, various government entities,
[255 Cal.Rptr.3d 56] and four private individuals or entities
that are the subject of this proceeding: Norman Sperber, a
forensic dentist and tool mark expert; Rod Englert, a retired
police officer and crime scene reconstructionist; and Orchid
Cellmark, Inc. (Cellmark) and Serological Research Institute,
Inc. (SERI), two forensic laboratories that conduct DNA
testing and analysis. Bracamontes relied on People v.
Superior Court (Morales) (2017) 2 Cal.5th 523, 213
Cal.Rptr.3d 581, 388 P.3d 811 (Morales ), which held
that a court has jurisdiction to order preservation of
evidence potentially subject to postconviction discovery
under Penal Code section 1054.9.
superior court granted Bracamontes’s motion in large part,
but it declined to issue preservation orders to Sperber,
Englert, Cellmark, or SERI. It reasoned that evidence in the
possession of these private parties would not be subject to
postconviction discovery under section 1054.9 and therefore
the court had no jurisdiction to order its preservation.
challenged the superior court’s determination by petition for
writ of mandate. He argued that Sperber, Englert, Cellmark,
and SERI were acting on behalf of the prosecution and
evidence in their possession was therefore subject to
discovery under section 1054.9.
summarily denied the petition. The California Supreme Court
granted review and transferred the matter back to this court
with directions "to vacate [our] order denying the
petition for writ of mandate and to issue an order to show
cause ... why the relief sought in the petition should not be
granted on the ground that private individuals and entities
working on criminal cases at the behest and under the
direction of law enforcement are subject to the discovery
provisions of Penal Code section 1054.9 and the preservation
obligations described in [Morales ]." We issued
the order to show cause as directed, and these proceedings
conclude that the superior court erred by denying the
preservation order directed at Cellmark and SERI. These
entities participated in the investigation of Arroyo’s murder
at the behest and under the direction of law enforcement.
Although few law enforcement organizations had the capacity
to conduct DNA testing at the time of the murder, it is now
seen as a core law enforcement function. Cellmark and SERI
are therefore properly viewed as members of the prosecution
team for purposes of discovery. Sperber and Englert, by
contrast, were retained solely for their testimony at trial
as independent expert witnesses. They did not participate in
the investigation of the murder. They were not part of the
prosecution team as the concept has been defined. We
therefore grant the petition in part and deny it in part, as
described further below.
FACTUAL AND PROCEDURAL BACKGROUND
Arroyo disappeared on June 19, 1991, and her body was found
the next morning. The Chula Vista Police Department (CVPD)
led the investigation into her [255 Cal.Rptr.3d 57] murder.
Rodrigo Viesca, a CVPD evidence technician, took photographs
and collected evidence from the crime scene, including a
number of hair strands. The next day, Viesca attended
Arroyo’s autopsy. He took photographs of Arroyo’s body, her
clothing, and each stage of the autopsy. Viesca collected a
number of biological samples during the autopsy, including
additional hair strands, oral and vaginal swabs, a neck swab,
and fingernail clippings. The medical examiner removed
portions of Arroyo’s jaw bone and shoulder blade, which
showed signs of injury, and Viesca collected those samples as
well. Viesca stored the biological evidence in the CVPD crime
after Arroyo’s murder, CVPD detectives identified Bracamontes
as a suspect. In August 1991, police obtained search warrants
for Bracamontes’s person, residence, and car. Viesca
collected hair, blood, and saliva samples from Bracamontes.
From his car, investigators obtained a white towel with an
apparent blood stain.
CVPD sent hair strands collected at the crime scene to
Cellmark and SERI for DNA testing. Cellmark did not find any
DNA material; the results of SERI’s testing is unclear from
the record. The CVPD provided the bloodstained towel to the
San Diego Sheriff’s Department for analysis, which in turn
sent it to SERI for DNA testing. SERI concluded that the
blood on the towel did not come from Arroyo. Arroyo’s
fingernail clippings were sent to the Sheriff’s Department
and the Federal Bureau of Investigation (FBI) crime
laboratory, but the testing they conducted and any results
are also unclear. Despite identifying Bracamontes as a
suspect, police made no arrests at the time.
years later, in 2003, CVPD cold case investigators identified
Arroyo’s murder as a candidate for possible reexamination.
They met with the former lead detective responsible for the
investigation, as well as representatives of the San Diego
County District Attorney’s Office. They went over the
physical evidence and asked the supervisor of the SDPD crime
laboratory for advice. The supervisor suggested looking at
certain biological evidence again. Viesca and a cold case
investigator delivered the swabs from Arroyo’s body and her
fingernail clippings to the SDPD crime laboratory for
SDPD crime laboratory detected sperm cells on the oral swabs.
Laboratory personnel requested and received the biological
samples previously obtained from Bracamontes for comparison.
Based on DNA analysis, the laboratory concluded that
Bracamontes was very likely the source of sperm on the oral
swabs. Additional examination revealed sperm cells underneath
both sets of fingernail clippings and on the neck swab. DNA
testing showed that Bracamontes was very likely the source of
these sperm cells as well.
officers arrested Bracamontes. Viesca again collected hair,
blood, and saliva samples from him.
deputy district attorney asked the SDPD crime laboratory to
send various samples to Cellmark for confirmatory testing.
The laboratory sent Cellmark the oral swabs, a vaginal swab,
and a reference [255 Cal.Rptr.3d 58] saliva sample obtained
from Bracamontes. Cellmark also found sperm cells on an oral
swab. It concluded, to a reasonable degree of scientific
certainty, that Bracamontes contributed to the DNA sample on
the oral swab.
San Diego County Superior Court held a multi-week jury trial
in August 2005. At trial, as relevant here, CVPD detectives
and cold case investigators testified about their
investigation into Arroyo’s murder. Viesca testified about
collecting evidence and sending it to various laboratories
for testing. Employees of the SDPD and Sheriff’s Department
crime laboratories testified about their experience with DNA
testing and the results of their testing efforts in this
prosecution presented testimony from a DNA analyst employed
by Cellmark. He testified that his main responsibility was to
receive and analyze evidence from government agencies
throughout the United States. Cellmark charges fees for the
DNA testing it performs and any resulting testimony. The
analyst understood that the District Attorney’s Office was
paying his fees to testify in this case. Substantively, he
described his process for analyzing the biological samples
provided by the SDPD crime laboratory, as well as the
conclusions summarized above.
prosecution also presented testimony from two retained expert
witnesses. The first, Norman Sperber, was a general licensed
dentist, a forensic dentist (or "odontologist"),
and tool mark expert. He received a degree in dentistry in
1954. He began doing forensic dentistry in 1964. Forensic
dentistry covers several major areas, including identifying a
deceased individual by dental records, determining the age of
an individual, and analyzing injuries caused by teeth (e.g.,
"bite mark" evidence). Sperber had testified in
approximately 225 cases, including over 30 non-teeth cases.
For this case, Sperber analyzed the jaw bone and shoulder
blade collected during Arroyo’s autopsy. He also looked at
photographs of her injuries, read reports from CVPD
detectives and investigators, and visited the scene of the
crime in May 2004 with Viesca and a cold case investigator.
Sperber was asked to opine whether a gardening tool,
specifically a pick mattock, ...